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2020.07.22 Motion for Summary Judgment 476
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.22
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.22
Excerpt: ...l, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. [Citations.] ‘ “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 the basic issue in a malpractice action and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is wit...
2020.07.22 Motion for Appointment of Counsel Re Reconsideration of Grant of Summary Judgment 965
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.22
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.22
Excerpt: ...Amalgam, and Nwaka, as well as the motion for reconsideration of plaintiff's cross‐motion for summary judgment. (Code Civ. Proc. § 1008, subd. (a); Penal Code § 2601, subd. (d).) Explanation: In Smith v. Ogbuehi (2019) 38 Cal.App.5th 453, the Fifth District Court of Appeal held that the trial court erred when it failed to exercise its discretion in response to the indigent prisoner plaintiff's motion for appointment of counsel in his civil ac...
2020.07.22 Motion for Judgment on the Pleadings 165
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.22
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.22
Excerpt: ...t Amended Complaint brought by Plaintiff Fri Poutinerie (Plaintiff). The motion is directed at the First Cause of Action for Breach of Contract, the Second Cause of Action for Breach of the Covenant of Good Faith and Fair Dealing, the Third Cause of Action for Intentional Misrepresentation and the Fourth Cause of Action for Negligent Misrepresentation. Plaintiff's claims arise from a commercial lease agreement to rent space for a restaurant from ...
2020.07.17 Motion for Attorney's Fees 813
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.17
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.17
Excerpt: ...obile Club of Southern California (2008) 42 Cal.4th 1142, 1147.) The fundamental objective of the private attorney general doctrine is to encourage suits enforcing important public policies by providing substantial attorney fees to successful litigants in such cases. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565 (Graham).) Under section 1021.5, the court may award attorney fees to (1) a successful party in any action (2) that has re...
2020.07.15 Demurrer, Motion to Strike 495
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.15
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.15
Excerpt: ...planation: Demurrer: “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Second Cause of Action – Fra...
2020.07.15 Demurrer 666
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.15
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.15
Excerpt: ... (“Central Valley”) is granted 10 days, running from service of the minute order by the clerk, to file and serve a second amended complaint, amending the fifth cause of action only to address the deficiency noted below. All new allegations in the amended complaint are to be set in boldface type. Explanation: First cause of action The first cause of action alleges that the net profits received by Golden State YMCA (“Golden State”) for its ...
2020.07.15 Demurrer 766
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.15
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.15
Excerpt: ...e time in which the complaint can be amended will run from service by the clerk of the minute order. New allegations in the Second Amended Complaint are to be set in boldface type. Explanation: Judicial Notice The court may take judicial notice of court records. (Evid. Code § 452(d).) Also, the court may take judicial notice of settlement agreements and arbitration documents. (see Performance Plastering v. Richmond American Homes of California, ...
2020.07.15 Motion for Determination of Good Faith Settlement 236
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.15
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.15
Excerpt: ...ss‐Complaint off calendar because (1) it is moot as to the first and second causes of action in light of the ruling on the good faith settlement motion, and (2) CMC has failed to comply with Code of Civil Procedure section 430.41. Explanation: Good Faith Settlement Motion Fresno Community Hospital and Medical Center, dba Community Regional Medical Center, dba Community Medical Centers (“CMC”) moves for determination that its settlement with...
2020.07.15 Motion for Summary Adjudication 526
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.15
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.15
Excerpt: ...ion shall be filed on or before 5:00 p.m. on Tuesday, July 21, 2020. Defendants' supplemental reply shall be filed on or before 5:00 p.m. on Thursday, July 30, 2020. Explanation: No Summary Adjudication of the Element of Damages Under Code of Civil Procedure section 437c, subdivision (f)(1), “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for da...
2020.07.15 Motion to Strike 446
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.15
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.15
Excerpt: ... of Civil Procedure section 425.16, which states that, “A cause of action against a person arising from any act of that person in furtherance of the person's right of 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 plainti...
2020.07.08 Motion to Strike 416
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.08
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.08
Excerpt: ...rike the prayer for prejudgment interest, contending that Civil Code section 3288 only permits an award of prejudgment interest in actions not arising from contract, and that Civil Code section 3287, subdivision (a), only allows prejudgment interest where the damages are certain or capable of being made certain by calculation. In the present case, defendant contends that plaintiff's claims arise out of the contract between the parties for the des...
2020.07.08 Motion to Compel Further Responses 105
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.08
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.08
Excerpt: ... objection and that made on the basis that the demand does not reasonably particularize the category of item. To limit further response and production to 1) any complaint or other initial filing in a court case or third party resolution process involving Ford and the owner of a 2016 Ford Explorer wherein Ford repurchased the vehicle, and where the repair history for that vehicle contains a problem for which the plaintiffs in this case also sought...
2020.07.08 Motion for Leave to File Amended Complaint 965
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.08
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.08
Excerpt: ...int can be amended will run from service by the clerk of the minute order. All new allegations in the amended complaint are to be set in boldface type. To order the JOP off calendar. Explanation: A court may, in the furtherance of justice, allow a party to amend any pleading on any terms as may be proper. (See Code Civ. Proc., §§ 473, subd. (a), 576.) “This statutory provision giving the courts the power to permit amendments in furtherance of...
2020.07.08 Motion for Judgment on the Pleadings 416
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.08
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.08
Excerpt: ...omplaint within ten days of the date of service of this order. All new allegations shall be in boldface. Explanation: Plaintiff's complaint attempts to state a single cause of action for breach of contract as to all of the defendants, including Ygrene Energy (incorrectly named as “Ygrene Financial, Inc.”). Plaintiff alleges that she entered into the contract with defendants on October 2, 2017, which was for installation of a new roof and sola...
2020.07.08 Demurrer, Motion to Strike 426
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.08
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.08
Excerpt: ...n to strike the prayer for punitive damages (SAC p. 11) without leave to amend. To grant the motion to strike the SAC as a whole because it was not signed, with plaintiff granted 10 days leave to file a Third Amended Complaint. (Code Civ. Proc. § 436.) The time in which the complaint may be amended will run from service of the order by the clerk. To set a motion to reclassify this case as a small claims matter on July 30, 2020 at 9:00 am in Depa...
2020.07.08 Demurrer 855
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.08
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.08
Excerpt: ...uses of action could be amended to state a cause of action. (Code Civ. Proc. § 430.10(e).) Respondents shall file their answer to the First Amended Petition and Complaint (“FAP”) within 10 days of service of the order by the clerk. If oral argument is timely requested, the matter will be heard on Monday, July 13, 2020 at 1:30 a.m. Explanation: Fourth Cause of Action The fourth cause of action alleges unlawful land use discrimination in viola...
2020.07.08 Demurrer 266
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.08
Location: Fresno
Judge: Kapetan, Kristi C
Hearing Date: 2020.07.08
Excerpt: ...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.) Accordingly, “[b]ecause the function of a demurrer is not to test the truth or accuracy of the facts alleged in the complaint, we assume the truth of all properly pleaded factual allegations.” (Los Altos Golf & Country Club v. County of Santa Clara (2008) 165 Cal.App.4th 198, 203.) The test is whether plaintiff ha...