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2023.12.20 Motion for Leave to Intervene in Action 360
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.20
Excerpt: ...defendant in resisting the claims of a plaintiff." (Code Civ. Proc., S 387, subd. (b)(2).) "A nonparty shall petition the court for leave to intervene by noticed motion or ex parte application. The petition shall include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds upon which intervention rests." (Code Civ. Proc., S 387, subd. (c).) "The court may, upon timely application, permit a nonparty ...
2023.12.20 Motion for Final Approval of Class Settlement 615
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.20
Excerpt: ...eady granted the motion for preliminary approval and certification of the class and found that the class is sufficiently numerous and ascertainable to warrant certification for the purpose of approving the settlement. There is no reason for the court to reconsider its decision granting certification of the class. Therefore, the court certifies the class for the purpose of final approval of the settlement. 2. Settlement a. Legal Standards "When, a...
2023.12.20 Motion for Approval of Settlement 745
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.20
Excerpt: ...ent thereon. Explanation: 1. Introduction under Labor Code section 2699, "[tlhe superior court shall review and approve any settlement of any civil acton filed pursuant to [PAGA]. The proposed settlement shall be submitted to the agency at the same time that is submitted to the court." (Lab. Code, S 2699, subd. (i)(2).) The statute does not explain what exactly the trial court should consider when reviewing a proposed PAGA settlement. However, re...
2023.12.20 Demurrer to FAC 450
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.20
Excerpt: ... the second, third, fifth, and sixth causes of action, with leave to amend. (Code Civ. Proc. S 430.10, subd. (e).) To overrule on all other grounds. (Code Civ. Proc. S 430.10, subd. (e), Plaintiff shall serve and file an amended complaint within 10 days of the date of service of this minute order by the clerk. All new allegations shall be in boldface. Explanation: Defendants Yamaha Golf-Car Company ("Yamaha") and Cart Star Motors, LLC ("Cart Star...
2023.12.19 Motion to Enforce Settlement 046
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.19
Excerpt: ...of Civil Procedure, section 664.6 provides in relevant part: If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. (Code Civ. Proc., S 664.6, subd. Here, the parties have a writing and litigation is still pending. The writing was c...
2023.12.19 Motion to Approve PAGA Settlement 736
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.19
Excerpt: ...ffected." (Williams v. Superior Court (2017) 3 Cal.5th 531, 549, citing Labor Code secton "The superior court shall review and approve any settlement of any civil action filed pursuant to this part. The proposed settlement shall be submitted to the agency' at the same tme that it is submitted to the court." ) [A1 trial court should evaluate a PAGA settlement to determine whether it is fair, reasonable, and adequate in view of PAGAls purposes to r...
2023.12.19 Motion for Leave to File TAC 856
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.19
Excerpt: ... defendants whereby credit was given based upon the value of their used car lot inventory value secured by the title certificates of those vehicles until sold or for 120 days, which ever occurred first, at which time the loan was to be paid off. The loan agreement was secured by a promissory note, vehicle collateral, a personal guarantee, and a surety bond. Plaintiff alleges that defendants failed to perform. Plaintiff filed its original complain...
2023.12.14 Motion for Summary Judgment, to Quash Subpoena, for Protective Order 485
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.14
Excerpt: ...ity Fruit Company, Inc. or, in the alternative, for a Protective Order Tentative Ruling: To deny the motion for summary judgment. To deny the motions to quash the deposition on Union Bank and U.S. Bank. To deny the motion to quash the deposition subpoena on Trinity Fruit Company, Inc. To deny the alternative relief sought for a protective order limiting the subject matter of the production. To deny every request for sanctions. To direct the parti...
2023.12.13 Demurrer 675
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.13
Excerpt: ...l demurrer on claims that "[t]he pleading does not state facts suffcient to constitute a cause of action." (Code Civ. Proc., S 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.l"].) In essence, "to withstand a demurrer, a complaint must allege ultimate facts, not evidentiary facts or conclusions of law." (Logan v. Southern Cal. Rapid Transit Dist. (...
2023.12.12 Motion to Enforce Settlement, to Strike Costs 086
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.12
Excerpt: ...n: Enforce Settlement "Code of Civil Procedure section 664.6 provides a summary procedure to enforce a settlement agreement by entering judgment pursuant to the terms of the settlement... The court retains jurisdiction to enforce a settlement under the statute even after a dismissal, but only if the parties requested such a retention of jurisdiction before the dismissal. Such a request must be made either in a writing signed by the parties or ora...
2023.12.06 Petition for Relief from Claim Filing Requirement 925
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.06
Excerpt: ...days of the date of the service of this minute order. (Govt. Code, S 946.6, subd. (f).) Explanation: Petitioners Eileen and John Quinto petition to the court for relief from government claim filing requirements pursuant to Government Code, secton 946.6 on the ground that there was excusable neglect for the untimely filing of their government claims. Unless otherwise provided for, no suit for money or damages may be brought against a government en...
2023.12.06 Motion to Compel Responses, for Monetary Sanctions 966
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.06
Excerpt: ...ories (Set One), and Request for ProducŸon of Documents (Set One). Cross-complainant Emory Merin is ordered to serve veriÞed responses, without objecŸons, to cross-defendant within 30 days of service of the minute order by the clerk. To grant monetary sancŸons against cross-complainant in the total amount of $780. Monetary sancŸons are ordered to be paid within 30 calendar days from the date of service of the minute order by the clerk. E...
2023.12.05 Demurrer, Motion to Strike 606
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.12.05
Excerpt: ... page 18, line 6; page 19, lines 7-12; and page 19, line 28, with leave to amend. (Code Civ. Proc., S 436; Civ. Code, S 3294.) Plaintiff is granted 20 days' leave to file the second amended complaint. The tme to file the second amended complaint will run from service by the clerk of the minute order. All new allegations in the second amended complaint are to be set in boldface type. Explanation: Retaliation: Defendants, India Oven, Inc., Gurdev S...
2023.11.30 Motion to Compel Responses, for Monetary Sanctions 267
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.11.30
Excerpt: ...� General, Set One, and Requests for Production of Documents, Set One, and Request for Monetary Sanctions 3) Plaintiff's Moton to Compel Attendance of Defendant Joshua O'Bannon at his Deposition and Request for Monetary Sanctons * *If timely requested, oral argument will be heard on Thursday, December 7, 2023, at 3:30 p.m. in Department 502* * Tentative Ruling: To grant all motions. Within 20 days of service of the order by the clerk, defendants ...
2023.11.29 Petition to Coordinate Add-on Case 241
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.11.29
Excerpt: ...granted. The plaintiffs in the coordinated actions are owners and operators of pistachio orchards in the Central Valley. They allege that in the spring or summer of 2020 they applied to their pistachios the insecticide imidaclopris, manufactured by defendants Bayer, Albaugh, Rotan, Nutrien Ag Solutions, Inc., and Loveland Products, Inc. Plaintiffs thereafter delivered their 2020 pistachio crops to Horizon Nut Company, who informed plaintiffs that...
2023.11.28 Motion to Strike Attorney Fees 165
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.11.28
Excerpt: ...thin twenty (20) days from the date of this order. Explanation: A "contract may impliedly as well as expressly permit [l recovery" of attorneys' fees. (Citizens Suburban Co. v. Rosemont Development Co. (1966) 244 Cal.App.2d 666, 683 (Citizens).) However, "[alttorney fees cannot be allowed a successful litigant without pleading and proof that there is a contract provision for them[]" (Ibid), and a demand for judgment not supported by allegations c...
2023.11.28 Demurrer to FAC 186
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.11.28
Excerpt: ...A complaint showing on its face the cause of action is barred by the statute of limitations is subject to general demurrer." (Iverson, Yoakum, Papiano & Hatch v. Berwa d (1999) 76 Cal.App.4th 990, 995, citaton omitted.) A demurrer based on the statute of limitations is properly brought as a general demurrer for failure to state facts sufficient to constitute a cause of achon even though the section 430 does not mention the statute of limitation a...
2023.11.15 Motion to Compel Deposition of PMQ 650
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.11.15
Excerpt: ...in that Notice of Deposition as set forth herein, except with respect to Request nos. 14-18. Explanaton: Code of Civil Procedure section 2025.280 provides, in relevant part: "The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or employee of a party to attend and to testify as well as to produce any document for inspection and copying." (Code Civ. Proc., S 2025.280, subd. Cod...
2023.11.15 Motion to Approve PAGA Settlement 736
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.11.15
Excerpt: ... of the settlement of plaintiff's action for PAGA penalties against defendant set forth in its February 23, 2023 ruling. However, the request for one-third of the gross settlement to be awarded as attorney's fees remains unsupported. The court intends to perform a lodestar calculation to double check the reasonableness of the fee request. (Laffitte v. Robert Half Internat. (2016) 1 Cal.5th 480, 504- 506.) Labor Code section 2699, subdivision stat...
2023.11.14 Motion for Summary Judgment, Adjudication 155
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.11.14
Excerpt: ...gment law turns on issue finding rather than issue determination. (Diep v California Fair Plan Assln (1993) 15 Cal.App.4th 1205, 1207.) The court does not decide the merits of the issues, but merely discovers, through the medium of affidavits or declarations, whether there are issues to be tried and whether the parties possess evidence that demands the analysis of a trial. (Melamed v City of Long Beach (1993) 15 cal.App.4th 70, 76; Molko v Holy s...
2023.11.14 Motion for Summary Judgment 425
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.11.14
Excerpt: ... (the "underlying Action"). Labiak moves for summary judgment on the ground that the claim is barred by the one-year statute of limitations. " he applicable statute of limitations for legal malpractice claims is secton 340.6." (Truong v. Glasser (2009) 181 cal.App.4th 102, 110, 103 cal.Rptr.3d 811.) It provides that a malpractice action must be commenced "within one year after the plaintiff discovers, or through the use of reasonable diligence sh...
2023.11.09 Motion for Trial Preference 296
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.11.09
Excerpt: ...dings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party s interest in the litigation. Civ. Proc., S 36, subd. "upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no contnuance beyond 120 days from the granting of the motion for prefer...
2023.11.08 Demurrer 076
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.11.08
Excerpt: ... 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, 697.) In assessing t...
2023.11.07 Motion to Disqualify Counsel 745
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.11.07
Excerpt: ...he opposing party disclosed to the expert with an expectation of confidentiality. (Shadow Traffic Network v. Superior Court (1994) 24 Cal. App. 4th 1067, 1078-80.) "Because the burden is on the party seeking to disqualify the expert, that party should point to specific and unambiguous disclosures that if revealed would prejudice the party." (Hewlett-Packard co. v. EMC corp. (N.D. cal. 2004) 330 F.supp.2d 1087, 1094.) The party should not be requi...
2023.11.07 Demurrer to FAC 260
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2023.11.07
Excerpt: ...to the demurring defendants. Explanation: 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...

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