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2024.05.16 Motion to Compel Responses, for Terminating Sanctions 267
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.16
Excerpt: ...off cale ndar due to the automatic bankruptcy stay against indispensable party, Joshua O'Bannon. Explanation: A Notice of Stay Proceedings due to filing of bankruptcy was filed as to defendant Joshua O'Bannon. The case is stayed as to the bankrupting defendant. ( 11 U.S.C. § 362; Wekell v. U.S. (9th Cir. 1994) 14 F.3d 32, 33.) Here, the Motion to Compel Initial Responses to Request for Production of Documents, Set Two, made against defendant O...
2024.05.16 Motion for Reconsideration 160
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.16
Excerpt: ... bring a motion to reconsider, and a different order may be entered, if, subject to the following conditions, the motion is: 1. brought before the same judge that made the order; 2. made within 10 days after service upon the party of notice of the entry of the o rder; 3. based on new or different facts, circumstances, or law; and 4. made and decided before entry of judgment. “[F]acts of which the party seeking reconsideration was aware at the t...
2024.05.16 Motion for Leave to File Amended Complaint 306
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.16
Excerpt: ...November 2, 2023, plaintiff California Attorneys, Administrative Law Judges and Hearing Officers in State Employment (“Plaintiff”) filed the operative Third Amended Complaint (“TAC”). The TAC states three causes of action: (1) preliminary and permanent injunctive relief; (2) petition for writ of mandamus as to defendants California Department of Human Resources and Eraina Ortega (collectively “Defendants”); and (3) petition for writ ...
2024.05.15 Motion to Quash Subpoenas for Medical Records 950
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.15
Excerpt: ...unity Regional Medical Center (Radiology) 4. Community Regional Medical Center (Billing) 5. Central California Faculty Medical Group 6. Accident Recovery Center (Medical/Radiology) 7. Accident Recovery Center (Billing) 8. Central California ENT Medical Group 9. Precise Imaging 10. Jonathan D. Caldwell, M.D. 11. Ali Najafi, M.D. 12. Ali Najafi, M.D. (Billing) 13. 3H Medical Group, Inc. 14. California Heart Medical Associates To award monetary sa...
2024.05.15 Motion for Summary Judgment of FAA, Adjudication 225
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.15
Excerpt: ...tively "Plaintiffs") seek summary judgment or, in the alternative, summary adjudication of the twenty-three affirmative defenses of the February 21 , 2023 Amended Answerl by defendants Joginder Singh, M.D., and Mandeep Singh, M.D.(collectively"Defendants").2 A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. S437c, subd. (c...
2024.05.15 Demurrer 985
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.15
Excerpt: ...on; and to sustain general demurrers to the sixth, seventh, eleventh, thirteenth causes of action, without leave to amend. Matthew Graney shall file his answer to the SAC within 10 days of service of the order by the clerk. Explanation: Special Demurrers As to cause s of action 1-3, 6, and 8 -14, Graney argues that the SAC is uncertain in that it fails to identify the parties affected thereby. Graney cites to Williams v. Beechnut Nutrition Corp....
2024.05.14 Motion for Summary Judgment, Adjudication 250
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.14
Excerpt: ...or disclosu res regarding a real estate transaction and that she failed to properly disclose information about the property. (First Amended CrossComplaint, ¶¶ 10 -13.) It is undisputed that Casa Robles Realty, and its agent Luis Altamirano, represented plaintiff Ben ito Cano -Perez in a real estate transaction involving the subject property. (UMF No. 1.) CVI Group, LLC was the seller of the subject property and was represented by All State Home...
2024.05.14 Motion for Preliminary Injunction 076
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.14
Excerpt: ... Orchards , Inc. (“Defendant”). The verified Complaint states four causes of action: (1) breach of contract; (2) foreclose on producer's lien; (3) recovery of statutory late charges; and (4) constructive trust. Plaintiffs seek to enjoin Defendant from: (1) selling o r removing from this state or beyond Defendant's control, any 2021 crop almonds or processed product therefrom that were delivered to Defendant by Plaintiffs, unless the proceeds...
2024.05.14 Motion for Judgment on the Pleadings 769
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.14
Excerpt: ...ion Here, defendants have defects in their verifications. Code of Civil Procedure section 2015.5 governs verifications. A verification requires a recitation that 1) it is certified or declared by the person 2) to be true under penalty of perjury, 3) is subs cribed by the person, and 4) if executed in California, states the date and place of execution or 5) if executed at any place, within or without this state, states the date of execution an...
2024.05.14 Demurrer, Motion to Strike Complaint 615
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.14
Excerpt: ...endar. If it does not resolve the issues, counsel for cross -defendant shall file a declaration, on or before June 18, 2024, stating the efforts made. If no declaration is filed, the motion will be taken off calendar. Explanation: Under Code of Civil Procedure secti on 430.41, “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that i...
2024.05.09 Motion to Compel Arbitration and Stay Proceedings 216
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.09
Excerpt: ...prove by a preponderance of evidence that a ground for denial of the motion exists (e.g., fraud, unconscionability, etc.) (Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413 -414; Hotels Nevada v. L.A. Pacific Ctr., Inc. (2006) 144 Cal .App.4th 754, 758; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) There is a strong policy in favor of arbitration. (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, ...
2024.05.09 Motion to Strike 959
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.09
Excerpt: ...ricken. Plaintiffs are granted 20 days' leave to file the first amended complaint. The time in which the complaint can be amended will run from service by the clerk of the minute order. All new allegations in the first amended complaint are to be set in boldface type. Explanation: A motion to strike can be used to cut out any irrelevant, false or improper matters or a demand for judgment requesting relief not supported by the allegations of th...
2024.05.09 Motions to File Late Memorandum of Costs, to Strike or Tax Costs 229
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.09
Excerpt: ...grant p laintiff's alternative motion to tax costs in the amount of $19,450. (Ladas v. Calif. State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Explanation: Untimely Filing “A prevailing party who claims costs must serve and file a memorandum of costs within 15 d ays after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of ent...
2024.05.08 Demurrer 225
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.08
Excerpt: ... powe r of attorney may bring an action on behalf of his principal only as guardian ad litem. (In re Marriage of Caballero (1994) 27 Cal.App.4th 1139, 1152.) Here, it is apparent that the real party in interest is Carolina Cruz and that Antonio Cruz would be a n appropriate guardian ad litem for Carolina Cruz. The court grants leave to amend the complaint to name the real party in interest as the plaintiff and to address the issue of a guardian a...
2024.05.08 Motion to Quash Subpoena 125
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.08
Excerpt: ...es she su ffered “severe and permanent injury to the body and nervous system” … (Complaint ¶ 20.) In her discovery responses, plaintiff states that she suffered a tear in her right knee's lateral meniscus, as well as injuries to her back, left arm, bilateral shoulde rs, neck, hip, head, and upper back. (Response to Defendant Form Interrogatories, Set One (“Form Rog”), No. 6.2.) Plaintiff also states that she continues to suffer con...
2024.05.07 Motion for Change of Venue, Demurrer, Motion to Strike 746
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.07
Excerpt: ...ction within 30 days after service of notice of the transfer order. The demurrers and motion to strike are taken off calendar, but are subject to be recalendared in the proper court upon the transfer of the action. Explanation: County of Tulare moves to change t he venue of this action on the ground that County of Fresno is an improper venue and County of Tulare is the only proper venue. “It is a long established rule that a motion for change o...
2024.05.07 Demurrer to FAC, Motion to Strike, to Quash Subpoenas 756
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.07
Excerpt: ...nt the motion to strike. (Code Civ. Proc., § 436.) To deny plaintiff's motion to quash. To deny imposition of sanctions. Explanation: Demurrer and Motion to Strike “Ordinarily, negligence may be pleaded in general terms and the plaintiff need not specify the precise act or omission alleged to constitute the breach of duty.” (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.) Nevertheless, claims falling under the Tort Cla...
2024.05.02 Demurrer, Motion to Strike 206
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.02
Excerpt: ... deny in par t. (Code Civ. Proc., § 436.) The request to strike the allegations pertaining to defendant Samuel Lofty Confectioner's acts done in the course and scope of his employment with defendant Fresno Unified School District (“FUSD”) is granted. The request to st rike the allegations pertaining to FUSD's duty to investigate is granted. The request to strike the prayer for attorney's fees pursuant to Civil Code 52 and 52.4 is granted. T...
2024.05.01 Motion for Attorney Fees 765
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.05.01
Excerpt: ...gh evidence regarding the hours spent on the case and the tasks performed to find that the requested fees are reasonable and should be approved. She has also not provided enough evidence to support the request to approve her law clerk's rate of $225 per hour . In Serrano v. Priest (1977) 20 Cal.3d 25, the California Supreme Court stated: “ ‘The starting point of every fee award, once it is recognized that the court's role in equity is to...
2024.04.30 Demurrer, Motion to Strike Punitive Damages from FAC 505
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.04.30
Excerpt: ...laintiff Zahi Saleh shall serve and file an amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer Defendant General Motors, LLC ("Defendant") demurs to the fifth cause of action, for fraudulent concealment of the First Amended Complaint ("FAC") by plaintiff Zahi Saleh ("Plaintiff"). On a demurrer a court's function is limited to testing the legal sufficiency of the c...
2024.04.25 Motion for Terminating Sanctions 315
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.04.25
Excerpt: ...Emeline Pano will be dismissed as a defendant in plaintiff's Complaint. (Code Civ. Proc., § 2023.030, subd. (d)(3).) Explanation: Plaintiff has a history of failing to comply with discovery obligations in this action, and appears to have abandoned this action. On August 10, 2023, and October 10, 2023, defendant Emeline Pano served plaintiff with deposition notices. Plaintiff never objected, but failed to appear on both occasions. On August 30, 2...
2024.04.25 Motion for Summary Judgment 815
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.04.25
Excerpt: ...tiff Kimberly White are ordered to appear at the hearing on this motion. Explanation: Healthcare providers must possess and exercise “that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under si milar circumstances.” (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36.) Thus, in any medical malpractice action, the plaintiff must establish: “(1) the duty of the professional to ...
2024.04.25 Demurrer to FAC 466
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.04.25
Excerpt: ...e order. Explanation: A general demurrer is sustained where the pleading is insufficient to state a cause of action or is incomplete. (Code Civ. Proc., § 430.10, subd. (e); Estate of Moss (2012) 204 Cal.App.4th 521, 535.) A special demurrer, though disfavored, is nevertheless sustained where a pleading is so uncertain that the defendant cannot reasonably respond to the subject pleading. (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612...
2024.04.25 Demurrer 611
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.04.25
Excerpt: ...aint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. To overrule the special demurrer for uncertainty. (Code Civ. Proc. § 430.10, subd. (f).) Explanation: A party may file a general demurrer on claims that “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e); Estate of Moss (2012) 204 Cal.App.4th 521, 535...
2024.04.24 Motion for Attorney Fees, to Tax Costs 636
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.04.24
Excerpt: ...tion: Fee A ward Plaintiff Ricardo Regalado Ceja (“Plaintiff”) seeks an award of attorney fees. Under what statutory authority Plaintiff seeks an award of fees is unclear. The moving papers appear to suggest that the parties stipulated to seek an award of fees and cos ts under a settlement agreement not in evidence on the present motion. Instead, counsel for Plaintiff submits into evidence 15 irrelevant orders from other cases in other jurisd...
2024.04.24 Motion to Dismiss 165
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.04.24
Excerpt: ...planation: Corporations may not represent themselves before the court in propria persona, nor can corporations represent themselves through their officers, directors, or any other employee who is not an attorney. (CLD Construction, Inc. v. City of San Ramon (2 004) 120 Cal.App.4th 1141, 1145.) Corporations must be represented by an appropriately licensed attorney in court proceedings. (CLD Construction, Inc. v. City of San Ramon, supra, 120 Cal.A...
2024.04.24 Motion to Bifurcate Trial 745
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.04.24
Excerpt: ...ice, Lazy Dog Restaurants, LLC's motion to bifurcate the contractual interpretation causes of action within the cross -complaints filed by Element Security Solutions, Inc. and Manco Abbott, Inc. from the issues of liability and damages. Explanation: Under Code of Civ il Procedure section 598, court is given great discretion in regard to the order of issues at trial: The court may, when the convenience of witnesses, the ends of justice, or the ec...
2024.04.24 Motion to Compel Further Responses 995
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.04.24
Excerpt: ...984) 158 Cal.Ap p.3d 524, 526), the expiration of the time period is considered “‘jurisdictional' in the sense that it renders the court without authority to rule on motions to compel other than to deny them.” (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 (S exton) [referring to the 45- day statutory time limit]; see also Vidal Sassoon Inc. v. Superior Court (1983) 147 Cal.App.3d 681, 684 (Sassoon); Standon Co. v. Superior Cour...
2024.04.23 Motion to Compel Statement of Damages, for Monetary Sanctions 365
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.04.23
Excerpt: ...425.10, subd. (b).) But the defendant may, at any time, serve a request on plaintiff for a Statement of Damages (mandatory Jud. Counc. Form CIV -050) setting forth the nature and amount of damages being sought. (Code Civ. Proc., § 425.11, subd. (b).) Once such a d emand is served, plaintiff has 15 days to serve the responsive statement. If that response is not served, defendant may file a noticed motion and petition the court to order plaintiff...
2024.04.23 Motion for Summary Judgment 825
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.04.23
Excerpt: ... FAC alleges two ca uses of action, for premises liability, and general negligence, based on Plaintiff's use of a recreational area on October 30, 2018, in the prison, wherein Plaintiff alleges having stepped into a gopher hole causing injury. A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. §437c(c); Schacter v. Citigro...
2024.04.23 Demurrer, Motion to Strike 815
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.04.23
Excerpt: ...sire to a mend, the First 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 file an amended pleading within that time period, demurring defendants shall file responsive pleadings within twenty (20) days from the date of this order. Explanation: In deciding a demurrer, the court is guided by well -established principles that the test is whe...
2024.04.23 Demurrer, Motion to Strike 606
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.04.23
Excerpt: ...-24; page 1 9, lines 6-11; and page 19, line 27, with leave to amend. (Code Civ. Proc., § 436; Civ. Code, § 3294.) Plaintiff is granted 20 days' leave to file the third amended complaint. The time to file the third amended complaint will run from service by the clerk of the minute order. All new allegations in the third amended complaint are to be set in boldface type. Explanation: Demurrer Retaliation/Discrimination Defendants, India Oven, I...
2024.03.28 Motion to Dismiss 915
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.28
Excerpt: ...e Civ. Proc., § 583.310.) “An action shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article.” (Code Civ. Proc., § 583.360, sub d. (a).) “The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.” (Code Civ. Proc., § 58...
2024.03.28 Motion for Terminating Sanctions 259
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.28
Excerpt: ...anati on: 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., § 2023.010, su bds. (d) & (g).) Code of Civil Procedure section 2023.030 states, in relevant part: To the extent authorized by the chapter governing any particular discovery method or any o...
2024.03.28 Motion for Attorney Fees 936
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.28
Excerpt: ...0 et seq. , may be awarded reasonable attorney's fees and costs in the court's discretion. (Govt. Code §12965, subd. (c)(6).) Plaintiff prevailed at trial and moves for an award of attorney's fees and costs. In her motion for attorney's fees, plaintiff requests an award of fees in the amount of $130,672.50, reflecting a 1.5 multiplier applied to the lodestar of $87,115.00, and litigation costs in the amount of $2,723.61. Defendant does not oppo...
2024.03.28 Motion for Approval of Class Action Settlement 115
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.28
Excerpt: ...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, 93- 95.) “Class certification requires proof (1) of a sufficiently numerous, ascertainable class, (2) of a well - defined community of interest, and (3) that certi...
2024.03.27 Application for Default Judgment 205
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.27
Excerpt: ... a right of first refusal to buy the remaining properties owned by the Virginia Shubin Barnett Living Trust for $12,500. (Exhibit D to Mireles decl., p. 2, ¶¶ 5.1, 6.) Plaintiff was to pay off the delinquent taxes on the properties, including $97,842.04 payable to Fresno County, $28,078.00 to the federal government, and $4,057.00 to the state. (Ibid.) Plaintiff was to pay the remaining balance of $120,022.96 to the Trust over five years. (Ibi...
2024.03.26 Demurrer to TAC, Motion to Strike 306
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.26
Excerpt: ...e Thir d Amended Complaint. (Code Civ. Proc. § 430.10, subd. (e).) To deny the motion to strike as moot. To set a hearing for Thursday, May 16, 2024, 3:30 p.m. in Department 502 to determine why a final leave to amend should not be granted. A supplemental opposi tion and reply may be filed in accordance with Code of Civil Procedure section 1005. Explanation: On November 2, 2023, plaintiff California Attorneys, Administrative Law Judges and Hea...
2024.03.21 Motion to Tax Costs 475
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.21
Excerpt: ...ch was entered in favor of Plaintiff against defendants Larry Oakander and Patricia Oakander (collectively “Defendants”). The First Amended Complaint stated one remaining cause of action against Defendants, for breach of installment note. On September 15, 202 3, Plaintiff timely lodged a Memorandum of Costs. On October 2, 2023, Defendants timely filed the instant motion to tax costs. Defendants object to each entry, in part, due to a lack of...
2024.03.21 Motion for Summary Judgment 450
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.21
Excerpt: ...laration is ruled upon as follows: Objection No. 4 is sustained for improper legal conclusion. Objection Nos. 5 and 8 are sustained for irrelevance and lack of foundation. Objection Nos. 9, 14 -16 are sustained for improper legal conclusion. Objection Nos. 10 -12 are su stained for lack of personal knowledge. Objection No. 17 is sustained for lack of foundation. Objection No. 18- 20 are sustained for lack of personal knowledge. Objection No. 21 i...
2024.03.21 Demurrer, Motion to Strike 296
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.21
Excerpt: ..., with leave to amend. Plaintiff shall serve and file his first amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer First, to the extent that plaintiff seeks to state a clai m against defendant William Smittcamp, he has not alleged any facts showing that he was employed by Mr. Smittcamp, had a contractual or other relationship with him, or that Mr. Smittcamp did ...
2024.03.20 Motion to Compel Further Responses, for Judgment on the Pleadings 550
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.20
Excerpt: ...e “tantamoun t to no responses at all[]” (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636), plaintiff's oppositions to the subject discovery motions notes that the verifications were served with the attendant oppositions – a representation not challenged in t he replies. Monetary sanctions are typically awardable under such circumstances. (See Cal. Rules of Court, rule 3.1348(a); Sinaiko Healthcare Consulting, Inc. v. Pacific He...
2024.03.20 Motion to Compel Arbitration and Stay Proceedings 945
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.20
Excerpt: ...t 17, 2023, the court sustains the objections to Exhibit A and the reference to the same in paragraph 6. The court overrules the objection to paragraph 5. Regarding the Declaration of Martin Martin filed February 7, 2024, the court overrules the objections to p aragraphs 3 and 7, but sustains the objections to paragraphs 4 -6 and Exhibit A. Arbitration Agreement Under the Federal Arbitration Act (“FAA”), A written provision in … a contract...
2024.03.19 Motion to Compel Initial Responses, for Sanctions 056
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.19
Excerpt: ...Custom Chopping, LLC for an Order Deeming Admissions by Plaintiff Telmo Coelho to Request for Admissions, Set One, and Request for Sanctions (3) By Defendant Kyle Brock for an Order Compelling Initial Responses from Plaintiff Telmo Coelho to Form Interrogatories – General, Set One, Form Interrogatories – Employment, Set One, Special Interrogatories, Set One, and Request for Production of Documents, Set One, and Request for Sanctions (4) By De...
2024.03.19 Demurrer 241
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.19
Excerpt: ...nty Superior Co urt. Horizon Nut, LLC, Horizon Growers Cooperative, Inc., and Joel Perkins filed a demurrer challenging the first cause of action for equitable indemnity on the grounds that it seeks equitable indemnity for an alleged third- party breach of contract and violates public policy. The court agrees with the latter ground and intends to sustain the demurrer. In the first cause of action for equitable indemnity, Nutrien alleges that H...
2024.03.14 Motion to Resolve Lien 875
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.14
Excerpt: ...aid on thei r behalf, DHCS may assert a lien on a personal injury settlement. However, where the Medi -Cal beneficiary's injury case settles for less than the full amount of damages, any Medi -Cal lien must be reduced based on a reasonable apportionment of the amount o f Medi-Cal benefits provided in comparison to the full amount of the beneficiary's damages. DHCS may only recover “that portion of a settlement that represents payments for me...
2024.03.14 Motion to Resolve Lien 335
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.14
Excerpt: ...aid progra m, administered by the Department of Health Care Services (DHCS or Department). (42 U.S.C., § 1396a.) When a Medi -Cal beneficiary is injured and medical expenses are paid on their behalf, DHCS may assert a lien on a personal injury settlement. However, w here the Medi -Cal beneficiary's injury case settles for less than the full amount of damages, any Medi -Cal lien must be reduced based on a reasonable apportionment of the amount ...
2024.03.14 Motion for Attorney Fees, to Tax Costs 615
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.14
Excerpt: ...n an action under the Song–Beverly Act “shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reas onably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code, § 1794, subd. (d).) The statute “requires the trial court to mak...
2024.03.14 Demurrer 506
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.14
Excerpt: ...ff in this case, Jose Rios Garcia, alleges a single cause of action against the County of Fresno (the "County") for premises liability arising from an accident that occurred when he bumped into a glass window and cut his eye after previously undergoing eye s urgery. Grounds for Demurrer The County demurs generally on the ground that the plaintiff fails to state a cause of action because: (1) under Government Code section 945.6, he failed ...
2024.03.13 Demurrer to SAC 760
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.13
Excerpt: ...f the second amended complaint with leave to amend. The plaintiff is granted leave of 10 days to file his first amended complaint, which will run from service by the clerk of the minute order. New language must be set in boldface type. Explanation: The plaintiff, Joshua Spengeman, filed his complaint in this action on September 6, 2022, to recover for harassment, discrimination, retaliation, and assault he experienced on his job as an employee...
2024.03.13 Motion for Leave to File SAC 485
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.13
Excerpt: ...er second amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: “ ‘Code of Civil Procedure section 473, which gives the courts power to permit amendments in furtherance of justice, has r eceived a very liberal interpretation by the courts of this state.... In spite of this policy of liberality, a court may deny a good amendment in proper form where there is unwarranted de...
2024.03.12 Motion to Compel Arbitration 160
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.12
Excerpt: ...oes not dispute that there exists an agreement to arbitrate, and that its cross- claims fall within the scope of the agreement. (Clark Decl., Exh. 1, ¶ 23.) In fact, the cross- claims were previously asserted by Joesclub in arbitration before LMI filed the C omplaint in this unlimited civil action. The arbitration proceeding was closed for lack of payment of on the retainer fee by Joesclub. (Clark Decl., Exh. 4.) Accordingly, the basic criteria...
2024.03.07 Motion to Strike, Demurrer to TAC 775
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.07
Excerpt: ... cause of action with leave to amend; and to deny the defendant's motion to strike. The plaintiff is granted leave of 10 days to file her fourth amended complaint, which will run from service by the clerk of the minute order. New language must be set in boldface type. Explanation: Eleven plaintiffs, not including plaintiff Gina Beckman, filed the original complaint in this action on September 7, 2022, against a single named defendant, Saint Agnes...
2024.03.07 Motion to Compel Arbitration and to Stay Matter Pending Hearing on the Petition 206
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.07
Excerpt: ...il Procedure section 1281.2 states that, “[o]n petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy , the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitra...
2024.03.07 Motion for Preliminary Injunction 036
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.07
Excerpt: ... defendant is likely to suffer if the preliminary injunction were issued.” (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69 -70; see also Code Civ. Proc., § 526, subd. (d)(2) [Injunctive relief appropriate “[w]hen it appears by the complaint or aff idavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action.”].) The Code of Civil Procedure...
2024.03.07 Demurrer, Motion to Strike 425
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.07
Excerpt: ...ause of action. To grant leave to amend as to the ninth and seventeenth causes of action, and to deny leave to amend as to the sixteenth cause of action. To deny defendants' motion to strike portions of the complaint, in its entirety. Pla intiffs shall serve and file their first amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer to Sixth Cause of Action: With re...
2024.03.06 Motion for Approval of PAGA Settlement 095
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.06
Excerpt: ...nder Labor Code section 2699, “[t]he superior court shall review and approve any settlement of any civil action filed pursuant to [PAGA]. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the cou rt.” (Lab. Code, § 2699, subd. (i)(2).) ‘“‘A representative action under PAGA is not a class action'”', and is instead a ‘type of qui tam action', a standard requiring the trial court to det...
2024.03.05 Motion to Compel Responses, for Evidence, Terminating, and Monetary Sanctions 766
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.05
Excerpt: ...ntinue the hearing on the motion to Tuesday, April 30, 2024 at 3:30 p.m. in Department 502, to afford plaintiff one final opportunity to comply with the court's order dated 11/7/2023. Defendant shall file with this court an update on the status of the discov ery nine court days before the continued hearing. Explanation: On 5/5/23 defendant propounded on plaintiff Form Interrogatories, Special Interrogatories and Request for Production of Docume...
2024.03.05 Motion for Terminating Sanctions 385
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.03.05
Excerpt: ... to this court, within seven days of the date of service by the clerk of this order, a proposed judgment dismissing this action as to defendant. The court denies defendant's additional request for monetary sanctions. Explanation: Once a motion to compel discovery is granted, continued failure to comply may support a request for more severe sanctions. Code of Civil Procedure section 2023.010, subdivision (g), makes “[d]isobeying a court order to...
2024.02.29 Motion to Set Aside Default, for Sanctions 338
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.29
Excerpt: ...ion: “The ethical obligation to warn opposing counsel of an intent to take a default is now reinforced by a statutory policy that all parties ‘cooperate in bringing the action to trial or other disposition.' Quiet speed and unreasonable deadlines do no t qualify as ‘cooperation' and cannot be accepted by the courts.” (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 137, emphasis added, citations omitted.) In addition, “[t]he law favors judg...
2024.02.29 Motion to Consolidate Unlimited Civil Action with Unlawful Detainer Actions 160
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.29
Excerpt: ...nation: The purpose of consolidation is to enhance trial court efficiency by avoiding unnecessary duplication of evidence and procedures, and to avoid the substantial danger of inconsistent adjudications. (Todd -Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978.) And where the issue is consolidating an unlawful detainer action with a civil action making a claim of ownership of the subject property, the additional issue is o...
2024.02.29 Demurrer to FAC, Motion to Strike Punitive Damages 399
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.29
Excerpt: ...r by the clerk, defendants shall submit a proposed Judgment dismissing the action. If oral argument is timely requested, such argument will be entertained in Department 403 at 3:30 p.m. on March 7, 2024. Explanation: In the FAC filed on 8/15/23, plaintiff Stacy Hu ber alleges she was falsely accused of misconduct at a termination meeting, terminated, and not given any reason for the termination. Based on these bare allegations, plaintiff alleges...
2024.02.28 Demurrer 946
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.28
Excerpt: ...30.10, subd. (e), (f).) To overrule the demurrers to the first and second causes of action. The time in which the complaint may be amended will run from service of the order by the clerk. All new allegations shall be in boldface type. Explanation: This is an elder abuse action brought on behalf of Dorothy Magee (“Decedent”), through her successor -in -interest Lydell Magee. Decedent's children, Lydell Magee and Marcel Smith, also assert a wr...
2024.02.28 Motion to Quash Three Subpoenas Duces Tecum 223
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.28
Excerpt: ..., to allow time for: (1) ESIS, Inc. to serve all appearing parties to the action with the moving papers and to file a corrected proof of service; and (2) the proposed successor in interest to substitute as a party to this action for the deceased plaint iff. The proposed successor in interest may file an ex parte application and reserve an ex parte hearing date for the substitution. The proposed successor in interest may re -file her opposition...
2024.02.28 Motion to Compel Arbitration 434
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.28
Excerpt: ...submitted on reply in the Reply Declaration of Gary Revis. All supplemental briefing will be per Code of Civil Procedure section 1005, subdivision (b), treating March 26, 2024 as the original hearing date. Explanation: Defendant Future Clovis, Inc. d ba Future Ford of Clovis (“Defendant”) moves for an order compelling Plaintiffs SS Pro Flooring & Construction, Inc. and Saul Sanchez Medina (collectively “Plaintiffs”) to arbitration. A tri...
2024.02.28 Motion to Compel Arbitration 959
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.28
Excerpt: ...ovisi on is deemed severed from the Retail Installment Sale Contract. To stay this action and the remaining claims against defendant PRCO, Inc. and American Contractors Indemnity Company pending the completion of arbitration. Explanation: Plaintiff contracte d to purchase a vehicle from Car Palace, Inc., doing business as Auto Depot, on credit. (Shahnematollah Decl., ¶ 9, Exh. A; Second Amended Complaint, ¶¶ 2, 5.) The dealership then assigned...
2024.02.27 Motion to Set Aside Default 985
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.27
Excerpt: ...dure section 473.5 in their arguments. Cross- Complainant JD Properties, Inc. addressed both grounds. Accordingly, the court proceeds on both grounds. Code of Civil Procedure section 473, subdivision (b) provides, in pertinent part: The court may, upon any te rms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertenc...
2024.02.27 Motion for Determination of Good Faith Settlement 745
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.27
Excerpt: ... Center (“Villagio”) and Manco Abbott, Inc., collectively “Settling Defendants,” have agreed to settle with plaintiffs for a total of $5,000,000.00, with offsets taken for settlements reached with defendants Cirks Construction, Inc. in the amount of $125,000 and Miller Clark Landscape and Nursery in the amount of $130,000. The final amount of the settlement is $4,745,000 with Lazy Dog contributing $949,000.00, Villagio contributing $2,37...
2024.02.22 Motion to Strike 394
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.22
Excerpt: ...Civil Procedure section 425.16, "[a] cause of action against a person arising from any act of that person in furtherance of the person 's rightof petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the ...
2024.02.22 Motion for Summary Judgment, Adjudication 873
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.22
Excerpt: ...defendants Sergio Franco and Vantage Point Finance, LLC in its entirety. If oral argument is timely requested, such argument will be entertained at 3:30 p.m. on Thursday, February 22, 2024, in Department 502. Explanation: Several parties move for summary judgment of the Second Amended Complaint (“SAC”) by plaintiff Cameron Arballo (“Plaintiff”). The SAC states eight causes of action: (1) breach of contract/specific performance; (2) quiet...
2024.02.22 Demurrer, Motion to Strike 254
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.22
Excerpt: ...to file such pleading will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. To deny plaintiff's motion to strike. If oral argument is timely requested, such argument will be entertained at 3:30 p.m. on Thursday, February 22, 2024, in Department 502. Explanation: Demurrer Code of Civil Procedure section 430.40 provides that a person may demur to an answer within 10 days after service of the...
2024.02.21 Motion to Tax Costs 006
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.21
Excerpt: ... any action or proceeding." (Code Civ. Proc., 1032, (subd. (b).) "Prevailing party' includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtans any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant." (Code Civ. Proc., S 1032, subd. (a)(4).) Here, defendant Saint Agnes Medical Center was clearly th...
2024.02.21 Motion to Compel Further Responses, for Monetary Sanctions 196
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.21
Excerpt: ...eek relief under Code of Civil Procedure sections 2023.040, 2023.030, 2023.030, and 2023.050 on the basis that defendant's “responses are evasive and incomplete and the objections are without merit or too general.” (Notice of Motions, at p. 2:1 -2 .) Plaintiff's separate statements, however, shows that defendant responded to most of the subject interrogatories and requests for admissions with straight forward denials and factual replies. In p...
2024.02.15 Motion to Lift Stay and Vacate Order Compelling Arbitration 160
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.15
Excerpt: ...3:30 p.m. in Department 502. To impose a monetary sanction against defendants Lithia NC, Inc. and American Credit Acceptance, LLC in the amount of $5,560, payable no later than thirty (30) days from the date of service of this order. Explanation: Code of Civ il Procedure section 1281.98 provides, in pertinent part: In an employment or consumer arbitration that requires, either expressly or through application of state or federal law or the rules ...
2024.02.15 Motion for Leave to File FAC 635
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.15
Excerpt: ...l dface type. Explanation: “The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading ….” (Code Civ. Proc. § 473, subd. (a); see also, § 576.) There is generally a strong policy in favor of allowing a plaintiff to amend the complaint. (Glaser v. Meyers (1982) 137 Cal.App.3d 770, 776- 777; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.) Accordingly, the California Supreme Court has he...
2024.02.14 Motion for Summary Judgment, to Compel Compliance with Order 535
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.14
Excerpt: ...oot. Explanation: SUMMARY JUDGMENT Evidentiary Objections The court finds plaintiff's objection to Pappas Declaration paragraph 3, and Exhibit A attached thereto, moot in light of plaintiff's submission of the same evidence in her opposition. The court overrules plaintiff's remaining objections to the Pappas Declaration. Merits A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is e...
2024.02.08 Motion for Attorney Fees 561
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.08
Excerpt: ...awal is not yet e¯ective, as counsel have not Þled proof of service of the Order Granting Attorney's Motion to be Relieved as Counsel. According to the order at paragraph 5, the “[attorney] is relieved as counsel of record for client e¯ective upon the Þling of the proof of service of this signed order upon the client.” No such proof of service has been Þled. Plainti¯ Þled this is action to recover on a $500,000 Loan Agreement and Pr...
2024.02.08 Demurrer 216
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.08
Excerpt: ...demurrer is to test the su¯iciency of a plainti¯'s pleading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether plainti¯ has succeeded in stating a cause of action; the court does not concern itself with the issue of plainti¯'s possible di¯iculty or inability in proving the allegations of the complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) In assessing the su¯icienc...
2024.02.07 Demurrer to TAC 776
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.07
Excerpt: ... Sixth, and Seventh Causes of Action Tentative Ruling: To sustain the demurrers to the entire Third Amended Complaint, with leave to amend. (Code Civ. Proc., § 430.10, subd. (f).) To take judicial notice of each document included in defendants' requests for judicial notice. (Evid. Code, § 452, subds. (c), (d).) Explanation: Defendant Fresno Community Hospital and Medical Center dba Community Regional Medical Center (“CRMC”) generally and sp...
2024.02.06 Motion for Protective Order 125
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.06
Excerpt: ...ourt may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. (Code Civ. Proc., § 2031.060, subd. (b).) This motion is brought pursuant to Code of Civil Procedure section 2031.060. Accordingly, the Superior Court of Fresno County, Local Rules, rule 2.1.17 applies. The relevant provision of Local Rule 2.1.17 provides as follows “…no motion...
2024.02.06 Motion for Final Approval of Class Action Settlement 864
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.06
Excerpt: ...l dollar amounts Þlled in (actual costs awarded as well as enhancement payments), within 5 days of the clerk's service of this order. To set a hearing on December 4, 2024 at 3:30 p.m. in Department 502 as a hearing date for an Amended Judgment pursuant to Code of Civil Procedure section 384. A veriÞed report of payouts of settlement funds and a proposed amended judgment shall be submitted no later than November 18, 2024. Explanation: “Before ...
2024.02.01 Motion to Strike 776
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.01
Excerpt: ...nitive damages, and the allegations at Item 14a “(2) punitive damages,” and “(2) in the amount of: $3,000,000.00.” (Code Civ. Proc., §§ 425.13, 425.10.) The striking of the punitive damages allegations is without prejudice to plainti¯s Þling a motion under Code of Civil Procedure section 425.13, subdivision (a). Explanation: Plainti¯s' Second, Third, and Fourth Amended Complaints Code of Civil Procedure section 472, subdivision (a)...
2024.02.01 Motion to Compel Arbitration, Stay Proceedings 246
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.01
Excerpt: ...l Arbitration Act, and request to dismiss, or alternatively, stay the action pending arbitration. Pursuant to the Federal Arbitration Act (“FAA”), A written provision in … a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, … shall be valid, irrevocable, and enforceable, save upon such ...
2024.02.01 Motion for Summary Judgment 487
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.01
Excerpt: ...cument included in plainti¯s' request for judicial notice. (Evid. Code, § 452, subd. (d).) To grant plainti¯s' motion for summary judgment against Agricultural Contracting Services Association. Inc., dba American Labor Alliance Workers' Compensation Fund & Trust, dba CompOne USA (“ALA”), and to deny the motion against Omega Community Labor Union, dba Compass Pilot Trust (“Omega”). (Code Civ. Proc., § 437c, subds. (c) and (p)(1).) Pl...
2024.02.01 Motion for Summary Adjudication 720
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.02.01
Excerpt: ...resolved in their favor. (Code Civ. Proc., § 437c, subd. (p)(1); see also Aguilar v. Atlantic RichÞeld Co. (2001) 25 Cal.4th 826, 850 [“First, and generally, from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.”].) Accordingly, a plainti¯ moving for summary adjudication on an a¯irmative...
2024.01.30 Motion for Summary Adjudication 625
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.01.30
Excerpt: ...air Employment and Housing Act provisions relied upon by plainti¯. To sustain defendant's objections as to the declaration of Shaun Austin. To sustain defendant's objections, except objection #2, to the declaration of Morgan Ruiz. Explanation: This case arises out of an alleged wrongful termination of plainti¯ after he su¯ered a brain aneurism requiring emergency surgery and extensive post-surgical rehabilitation. When plainti¯ contacted ...
2024.01.25 Motion for Summary Judgment 075
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.01.25
Excerpt: ...vere water damage which decedent's house sustained after an integrated water supply part located within an upstairs bathroom faucet failed and caused the home to flood. Unfortunately, decedent had suffered a stroke and was not living in her home at the time in question. Decedent stated that she learned of the claim when the water utility contacted her to advise that her water had been shut off following an unusually large spike in water usage. De...
2024.01.25 Motion for Attorney Fees, to Amend Judgment 475
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.01.25
Excerpt: ...r Family Trust of 2004, ("Plaintiff") seeks an award of attorney fees pursuant to Civil Code section 1717 following judgment after trial, which was entered in favor of Plaintiff against defendants Larry Oakander and Patricia Oakander (collectively "Defendants"). The First Amended Complaint stated one remaining cause of action against Defendants, for breach of installment note. Plaintiff now seeks a fee award of $407,553.60. Statutory Grounds unde...
2024.01.24 Demurrer, Motion to Strike Punitive Damages 595
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.01.24
Excerpt: ...vil Procedure section 430.41and 435.5; specifically, to meet and confer with plaintiff regarding the issues raised by the demurrer and motion to strike. If the parties cannot agree on the purported deficiencies in the first amended complaint, defendant may calendar another hearing date for the demurrer and must comply with Code of Civil Procedure section 430.41 and 435.5 in doing so. If the parties need more time to meet and confer, they may subm...
2024.01.18 Petition to Compel Appraisal 166
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.01.18
Excerpt: ...ibed." (Kacha v. Allstate Ins. Co. (2006) 140 Cal.App.4th 1023, 1031.) It is not the court's role to review the merits of the controversy or to determine whether the evidence is sufficient to support the appraisal award. (Ibid.) The petition identifies the California Arbitration Act, (Code Civ. Proc. S 1280, et seq.) as providing authority for the court to compel California FAIR Plan Association to participate in the Insurance Code 52071 appraisa...
2024.01.18 Motion for Attorney Fees 165
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.01.18
Excerpt: ...civil achon brought under the Fair Employment and Housing Act, Government Code section 12900 et seq., may be awarded reasonable attorney's fees and costs in the court's discretion. (Govt. Code 512965, subd. (c)(6).) The parties reached a settlement upon plaintiff's acceptance of defendants' Code of Civil Procedure section 998 Offer to Compromise, the terms of which included reasonable attorney's fees and costs awarded by the court. In her motion ...
2024.01.11 Motion to Deem RFAs Admitted, to Compel Deposition, Initial Responses 315
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.01.11
Excerpt: ...of Documents, Set One Tentative Ruling: To grant the motions to compel verified discovery responses, and for deemed admissions. (Code Civ. Proc., S 2030.290, 2031.300, 2033.280.) Within 10 days, plaintiff Jose Madrigal shall serve objections-free, verified responses Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production of Documents, Set One. The truth of all matters specified in the Request for Admissions, Se...
2024.01.11 Motion for Judgment on the Pleadings, for Terminating Sanctions 906
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.01.11
Excerpt: ...t dismissing the action as to the City of Fresno. Explanation: A motion for judgment on the pleadings can be made at any time before or during trial. The motion performs the same function as a general demurrer, and thus attacks defects disclosed on the face of the pleadings or by matters that can be judicially noticed. (Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1058.) The plaintiff, Kimberly Ramirez (Plaintiff), has ha...
2024.01.10 Motion for Terminating Sanctions and Monetary Sanctions 715
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.01.10
Excerpt: ...inute order, a proposed judgment dismissing this action. To grant monetary sanctons against plaintiff and plaintiff's counsel in the amount of $1,359.95. Monetary sanctions are ordered to be paid within 30 calendar days from the date of service of the minute order by the clerk. Explanation: Terminating Sanctions: Once a motion to compel discovery is granted, continued failure to comply may support a request for more severe sanctions. Code of Civi...
2024.01.10 Demurrer, Motion to Strike 455
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.01.10
Excerpt: ...: Demurrer The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of plaintiff's possible difficulty or inability in proving the allegations of his complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 597.) In a...
2024.01.04 Motion for Terminating and Monetary Sanctions 699
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.01.04
Excerpt: ...ubd. To grant plaintiff's request for monetary sanctions in the amount of $1,860 against defendant Brooklyn Moving Inc. payable to plaintiffs counsel within thirty (30) days from the date of this 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 prov-de discovery." (Code Civ. Proc...
2024.01.03 Motion to Set Aside Default 186
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.01.03
Excerpt: ...xcusable neglect under Code of Civil Procedure, section 473, subdivision (b). Actual Notce "When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action." (Code Civ. Proc., S 473.5, subd. (a).) The ...
2024.01.03 Motion for Leave to File Complaint 016
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.01.03
Excerpt: ...sehold agreement with the defendants whereby they agreed to lease a single family residence located without Fresno County from defendants. The lease agreement was executed November 17, 2020. The lease included a move-in inspection sheet, notice of repair, and indemnity provisions. Plaintiff alleges that, on February 22, 2021, while residing upon the premises, she tripped and fell in a "defective portion" of the hal way, which caused serious injur...
2024.01.03 Demurrer to FAC 216
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2024.01.03
Excerpt: ...demurrers to plaintiff's first (breach of fiduciary duty), third (elder abuse), fifth (breach of implied covenant) and sixth (unfair business practice) causes of acton. To grant defendants' request for judicial notce. The court will take notice of its own records in the instant case for the fact of the filing of plaintiff's first amended complaint but not for the truth of the matters stated therein. Explanation: The express basis for the defendan...
2023.12.21 Motion for Preliminary Approval of Class Settlement 415
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.21
Excerpt: ... are adequately protected, although there is less scrutiny of manageability 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.) 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. (Luckeyv. Superior Court (2014) 228 Cal.App.4th 81, 95.) A precertif...

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