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2020.07.15 Motion for Determination of Good Faith Settlement 236
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 Demurrer 666
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, Motion to Strike 495
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 766
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, ...
2020.07.14 Motion to Compel Arbitration, to Stay or Dismiss Proceedings 343
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2020.07.14
Excerpt: ... Pursuant to the Uniform Electronic Transactions Act, found at Civil Code sections 1633.1 et seq., and Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, as well as the lack of evidence from plaintiff, the Court finds that an agreement to arbitrate exists. 2. Interpretation of Arbitration Agreements Interpretation of contracts is solely judicial function where there is no extrinsic evidence. (Powers v. Dickson, Carson & Campillo (199...
2020.07.14 Motion for Summary Judgment, Adjudication 584
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2020.07.14
Excerpt: ...signature within 10 days. Explanation: The court intends to grant the motion for summary judgment in favor of defendants NP Brown, Dr. Jose Bautista, and Dr. Luis Bautista, as they have met their burden of presenting expert testimony showing that they did not breach the standard of care and that their acts or omissions did not cause plaintiffs' injuries. “The standard of care in a medical malpractice case requires that physicians exercise in di...
2020.07.14 Motion for Preliminary Approval of Class Action Settlement 704
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2020.07.14
Excerpt: ..., and (3) that certification will provide substantial benefits to litigants and the courts, i.e., that proceeding as a class is superior to other methods. In turn, the community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.” (In re Tobacco II Cases (2009)...
2020.07.10 Petition to Compel Arbitration, Motion to Stay Proceedings Pending Outcome 129
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.07.10
Excerpt: ...tiff's allegedly late‐filed opposition, the objection is overruled. Plaintiff's opposition was timely filed nine court days before the continued hearing date, so it does not appear that the opposition was filed late under Code of Civil Procedure section 1005, subdivision (b). Even assuming that the opposition was late based on the earlier hearing date, defendant has forfeited the objection by filing a reply that addresses the merits of the oppo...
2020.07.10 Motion to Determine Prevailing Party on Contract, Fix Amount of Attorney's Fees 781
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.07.10
Excerpt: ... does not support the requested amount. Explanation: As an initial matter, to the extent that plaintiff seeks an order determining that it is the prevailing party on the contract action, such an order is unnecessary as the Court of Appeal has already determined that plaintiff is entitled to its attorney's fees on appeal as the prevailing party in the appeal. “Appellants do not challenge the trial court's award of attorney fees. The credit appli...
2020.07.10 Motion for Relief from Dismissal, for Sanctions 822
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.07.10
Excerpt: ...eave to amend. Because plaintiff's counsel had a habit of not responding to defense counsel's meet and confer requests, pursuant to Code of Civil Procedure section 430.41(c), the court ordered plaintiff's counsel to hold a conference of attorneys prior to filing an amended complaint. Defendant then moved to dismiss the complaint pursuant to Code of Civil Procedure section 581(f)(2) because plaintiff's counsel had not communicated with defense cou...
2020.07.09 Motion for Summary Adjudication 177
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2020.07.09
Excerpt: ...y adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (CCP § 437c(f)(1); see also Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97 [piecemeal adjudication prohibited].) The ultimate burden of persuasion rests on defendant, as the moving party. The initial burden of production is on defendant to show by a preponderance of the evidence that i...
2020.07.09 Motion to Compel Arbitration, Stay All Proceedings 437
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2020.07.09
Excerpt: ...eir truth. (See, e.g., Evid. Code §§ 451‐452.) Even so, the declaration can be considered as evidence in support of this motion, since affidavits and declarations are a routine form of evidence in motions to compel arbitration. It does not stop being evidence simply because it was filed in connection with a different motion. It was Ms. Boujikian's declaration then, and it is her declaration now. Also, the fact that the documents attached to t...
2020.07.08 Motion to Strike 416
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 for Leave to File Amended Complaint 965
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
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
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
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
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...
2020.07.08 Motion to Compel Further Responses 105
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...
2020.07.07 Motion to Quash Service of Summons 036
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2020.07.07
Excerpt: ... has the initial burden of showing the essential facts of jurisdiction, that is the facts requisite to an effective service. (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868; Dill v. Berquist Const. (1994) 24 Cal.App.4th 1426, 1439‐ 40.) This may be done through presentation of declarations, with opposing declarations received in response. (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 568.) Furthermore, filing a proof of service...
2020.07.07 Motion to Compel Arbitration 338
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2020.07.07
Excerpt: ...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.) The alleged arbitration agreement in this case is governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1, et seq. Section 2 of the FAA provides for enforcement ...
2020.07.07 Demurrer, Motion to Strike 333
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2020.07.07
Excerpt: ...nded Complaint. The 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: 1. Judicial Notice The court takes judicial notice of the recordation of the requested documents. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) 2. Demurrer The function of a demurrer is to t...
2020.07.02 Motion for Judgment on the Pleadings 757
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2020.07.02
Excerpt: ... a judgment in conformity with this order. Explanation: Defendant Kingspan Insulated Panels, Inc. (“Kingspan”) moves for judgment on the pleadings as to the First Amended Cross‐Complaint (“FACC”) brought by Style‐Line Construction, Inc. (“Style‐Line”). A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired, and so the rules governing demurrers apply....
2020.07.02 Motion for Summary Judgment 608
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2020.07.02
Excerpt: ...minutes and 13 seconds.3 However, according to defendant's own legal authorities, the issue of whether a hazard existed long enough to give the defendant constructive notice of the dangerous condition is generally an issue of fact that should be resolved by the trier of fact, not an issue that is amenable to resolution as a matter of law. In Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, the California Supreme Court stated that, “[b]ecause the o...
2020.07.02 Motion for Leave to File Amended Complaint 608
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2020.07.02
Excerpt: ...rocedure section 473, which gives the courts power to permit amendments in furtherance of justice, has received 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 delay in presenting it.... On the other hand, where there is no prejudice to the adverse party, it may be an abuse of discretion to deny leave to amend.' [Citati...
2020.07.02 Motion to Deny Class Certification or to Strike Class Allegations 418
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2020.07.02
Excerpt: ...ke class allegations, as improperly filed, redundant, and moot. (Ibid.) Explanation: Under Code of Civil Procedure section 382, “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.” (Code Civ. Proc., § 382.) “The party seeking certification as a class representative must ...
2020.06.30 Motion for Right to Attach Order 374
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2020.06.30
Excerpt: ...d date of the hearing, the nature of the relief sought, and the grounds on which the motion will be based. “Unless otherwise provided by the rules in this division, the papers filed in support of a motion must consist of at least the following: (1) A notice of hearing on the motion; (2) The motion itself; and (3) A memorandum in support of the motion or demurrer.” (Cal. Rules of Court, Rule 3.1112, subd. (a), emphasis added.) “The papers fi...
2020.06.30 Demurrer 936
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2020.06.30
Excerpt: ...ill run from service by the clerk of the minute order. Explanation: A demurrer is appropriate “[w]hen any ground for an objection to a complaint … appears on the face thereof, or from any matter of which the court is required to or may take judicial notice ....” (Code Civ. Proc., § 430.30, subd. (a).) A court should sustain a demurrer where a complaint fails to state “facts sufficient to constitute a cause of action.” (Id. at § 430.10...
2020.06.26 Motion for Summary Judgment, Adjudication 882
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.06.26
Excerpt: ...n not that there is no triable issue of material fact. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850.) In determining whether any triable issues of material fact exist, the court must strictly construe the moving papers and liberally construe the declarations of the party opposing summary judgment. Any doubts as to whether a triable issue of material fact exist are to be resolved in favor of the party opposing summary judgment. (Barbe...
2020.06.26 Demurrer 929
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.06.26
Excerpt: ...dez and Hernandez Chiropractic Spinal Decompression, Inc. demur to the entire complaint on the ground that it is barred by the applicable statute of limitations, as they contend that plaintiff's claims accrued on September 26, 2016 when she was allegedly sexually assaulted by defendant Arthur Hernandez, and she did not file her complaint until October 23, 2018, more than two years after the assault. (See Code Civ. Proc. § 335.1 [establishing two...
2020.06.25 Motion for Summary Judgment, Adjudication 897
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2020.06.25
Excerpt: ...and the federal court denied the motion as to the state law claims. (See Defendants' Exhibit U, Order of United States District Court for the Eastern District of California dated August 30, 2017.) In its order, the District Court expressly found that there were triable issues of material fact with regard to the state law wrongful death cause of action, and thus denied summary adjudication of that claim. (Order, pp. 21:19 ‐ 22:23.) The District ...
2020.06.25 Motion for Final Approval of Class Settlement 707
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2020.06.25
Excerpt: ...40,000. Explanation: 1. Final Approval of Settlement California Rules of Court, rule 3.769(g) states: “Before final approval, the court must conduct an inquiry into the fairness of the proposed settlement.” Subsection (h) states: “If the court approves the settlement agreement after the final approval hearing, the court must make and enter judgment. The judgment must include a provision for the retention of the court's jurisdiction over the...
2020.06.25 Demurrer 117
Location: Fresno
Judge: Tharpe, D. Tyler
Hearing Date: 2020.06.25
Excerpt: ...e to amend as to the claim alleged under the Information Practices Act only. Any amended pleading must be filed within 30 days of the hearing. Plaintiff is allowed to appear through Court Call. Explanation: The Court incorporates its ruling of November 19, 2019. The demurrer on the ground of Code of Civil Procedure section 430.10, subdivision (d), is sustained for the same reasons it was sustained last time. Plaintiff's First Amended Complaint (F...
2020.06.23 Demurrer 823
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2020.06.23
Excerpt: ...s sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).) To deny the motion to strike punitive damages; and to grant the motion to strike the prayer for attorney's fees. Explanation: Demurrer to First Cause of Action: “The elements of fraud are: (a) misrepresentation; (b) knowledge of falsity (scienter); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. Fraud action...
2020.06.23 Motion to Strike Punitive Damages 134
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2020.06.23
Excerpt: ...tion: 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 the complaint.” (Code Civ. Proc., § 431.10, subd. (b); see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164 [A motion to strike is the proper procedure to challenge an improper request for relief, or improper remedy, within a complaint.].) With respect to ...
2020.06.23 Motion for Sanctions 393
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2020.06.23
Excerpt: ...128.7, a court may impose sanctions for filing a pleading if the court concludes the pleading was filed for an improper purpose or was indisputably without merit, either legally or factually.” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440, citation omitted; see Musaelian v. Adams (2009) 45 Cal.4th 512, 519 [purpose of §127.8 is to deter filing abuses].) “A claim is factually frivolous if it is not well grounded in fact and is legally f...
2020.03.19 Motion to Withdraw Admission 530
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2020.03.19
Excerpt: ...take the plaintiff's deposition. The court will decide the amount of attorney fees to be awarded upon defendant's noticed motion. Explanation: In determining a motion to withdraw an admission, the court considers: “(1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim.” (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276; Huh v. Wang (2007) 158 C...
2020.03.19 Motion to Compel Deposition 089
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2020.03.19
Excerpt: ...urally defective in two respects. First, none of the exhibits supporting the motion are authenticated. Maria Lampasona in her declaration purports to authenticate around 18 exhibits attached to her declaration. But the declaration includes no exhibits or attachments. SCCCD separately filed a volume of evidence, but the declaration does not reference such a filing. None of the exhibits are actually authenticated. Second, and most significantly, th...
2020.03.19 Motion for Summary Judgment, Adjudication 897
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2020.03.19
Excerpt: ... and the federal court denied the motion as to the state law claims. (See Defendants' Exhibit U, Order of United States District Court for the Eastern District of California dated August 30, 2017.) In its order, the District Court expressly found that there were triable issues of material fact with regard to the state law wrongful death cause of action, and thus denied summary adjudication of that claim. (Order, pp. 21:19 ‐ 22:23.) The District...
2020.03.19 Motion for Summary Judgment, Adjudication 360
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2020.03.19
Excerpt: ... Foster Farms' motion for summary judgment. Defendant Foster Farms is directed to submit to this court, within 5 days of service of the minute order, a judgment consistent with the court's order. Explanation: In the case at bar, plaintiff alleges six causes of action: (1) discrimination on the basis of race/nationality and disability in violation of the FEHA; (2) failure to provide reasonable accommodations [FEHA]; (3) failure to engage in intera...
2020.03.19 Demurrer, Motion to Strike 333
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2020.03.19
Excerpt: ...mended Complaint. The 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: 1. Judicial Notice The court takes judicial notice of the recordation of the requested documents. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) 2. Demurrer The function of a demurrer is to...
2020.03.19 Demurrer, Motion to Strike 303
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2020.03.19
Excerpt: ...meet and confer requirements of Code of Civil Procedure sections 430.41 (demurrer) and 435.5 (strike). The court grants defendant twenty days within which to comply with the statutes. Defendant must meet and confer “in person or by telephone” with plaintiff, “at least five days before the date” the demurrer and/or motion to strike is due, regarding the issues raised by the demurrer and motion to strike, or attempt to do so and provide suf...
2020.03.19 Demurrer 117
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2020.03.19
Excerpt: ... Practices Act only. Any amended pleading must be filed within 30 days of the hearing. Oral argument for this matter at 3:30 p.m. on May 7, 2020 in this Department. Plaintiff is ordered to appear through Court Call. Explanation: The Court incorporates its ruling of November 19, 2019. The demurrer on the ground of Code of Civil Procedure section 430.10(d) is sustained for the same reasons it was sustained last time. Plaintiff's FAC rests a claim u...
2020.03.18 Motion for Approval of PAGA Settlement and Release 326
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2020.03.18
Excerpt: ...nsideration being paid for the release of those claims represents a reasonable compromise.” (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal. App. 4th 116, 133.) In Clark v. American Residential Services, LLC (2009) 175 Cal. App. 4th 785, the Court of Appeal stated that, “[the] court [must] receive and consider sufficient information on a core legal issue, affecting the strength of the case for plaintiffs on the merits, to make the requisit...
2020.03.17 Motion to Compel Compliance with Inspection Demand 225
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2020.03.17
Excerpt: ...ich must state whether the inspection will be allowed, pose objections, or represent that responding party is unable to permit the inspection. Code of Civil Procedure section 2031.210 and 2031.220. That response has to be under oath. Code of Civil Procedure section 2031.250. The response is due in 30 days from service of the demand for inspection. Code of Civil Procedure section 2031.260. Failure to provide a timely response usually results in a ...
2020.03.17 Motion for Summary Judgment, Adjudication 231
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.03.17
Excerpt: ...drawn there from and must view such evidence and such inferences 'in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In making this determination, trial courts usually follow a three‐step analysis: identifying the issues as framed by the pleadings; determining whether the moving party has established facts negating the opposing party's claims and justifying judgment in the movan...
2020.03.17 Motion for Approval of PAGA Settlement 792
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.03.17
Excerpt: ... wage statements in violation of Labor Code section 226(a), (2) failure to provide meal and rest periods or compensation in lieu thereof in violation of Labor Code sections 226.7 and 512, and (3) constructive discharge in violation of public policy. The second and third causes of action are individual causes of action for plaintiff only, and are not brought on behalf of other aggrieved employees. Because an aggrieved employee's action under the [...
2020.03.17 Motion to Compel Responses, for Sanctions 520
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.03.17
Excerpt: ...d the requests for admission. To order monetary sanctions in the amount of $385, payable by plaintiff to defense counsel within 30 days of the date of service of this order. Explanation: Motion to Compel Responses to Interrogatories “If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply: [¶] (a) The party to whom the interrogatories are directed waives . . . any objection to the interrogato...
2020.03.17 Motion to Enforce Settlement 558
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2020.03.17
Excerpt: ...the settlement.” (Code Civ. Proc., § 664.6.) When deciding whether to enter judgment pursuant to section 664.6, the court is empowered to conduct a mini trial on the enforceability of the settlement agreement. Courts may adjudicate disputed facts and “entertain challenges to the actual terms of the stipulation.” (Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566 [statute's express authorization for trial courts to determine if a settlement oc...
2020.03.17 Motion to Vacate Entry of Judgment on Sister State Judgment 969
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2020.03.17
Excerpt: ...entered by Plaintiff Arcarius, LLC, on two grounds: first, that because the foreign state judgment was based on a confession of judgment it violates Due Process; and, second, Plaintiff's use of the confession of judgment was “premature and wrongful,” because Defendants were not in default at the time of the entry of judgment. Defendants also appear to make an argument that they were not afforded “service of process, notice and a right to be...
2020.03.17 Petition to Compel Binding Arbitration, Stay Action 685
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2020.03.17
Excerpt: ...t itself states the following: By virtue of Resident's consent, instruction and/or durable power of attorney, I hereby certify that I am authorized to act as Resident's agent in executing and delivering of this arbitration agreement. I acknowledge that the Facility is relying on this representation. However, defendant bore the burden of establishing a valid agreement to arbitrate. (Pagarigan v. Libby Care Center, Inc. (2002) 99 Cal.App.4th 298, 3...
2020.03.12 Motion to Strike 221
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.03.12
Excerpt: ...f this minute order. 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 the complaint.” (Code Civ. Proc., § 431.10, subd. (b).) A motion to strike is the proper procedure to challenge an improper request for relief, or improper remedy, within a complaint. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166...
2020.03.12 Motion to Amend Judgment, for Related Relief 863
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2020.03.12
Excerpt: ... proposed amended judgment consistent with the court's order. Explanation: Every case may only have one final judgment. Generally, in order to be considered “final,” a judgment must adjudicate the claims asserted in both a complaint and cross‐complaint. (Nicholson v. Henderson (1944) 25 Cal.2d 375, 381.) Here, Left Coast seeks dismissal of the cross‐complaint, so that it may have one final judgment. This court is inclined to grant Left Co...
2020.03.12 Motion for Summary Judgment, Adjudication 697
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2020.03.12
Excerpt: ...s now dismissed those claims with prejudice. (Ibid.) To deny the CDCR's motion as to the fourth cause of action, as moot since that cause of action has been dismissed with prejudice. (Ibid.) To grant the CDCR's motion as to the first, second, third, and fifth causes of action, and McElroy's motion as to the fifth cause of action. (Ibid.) Defendants shall submit a proposed judgment consistent with this order for the court's signature within 10 day...
2020.03.12 Motion for Summary Judgment, Adjudication 065
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2020.03.12
Excerpt: ...he alternative motion for summary adjudication. (Code Civ. Proc. § 437c.) To grant defendant Dycora's motion for summary judgment as to the entire complaint. (Ibid.) Dycora shall submit a proposed judgment consistent with the court's order within 10 days of the date of this order. Explanation: Beverly Healthcare's Motion: Beverly argues that plaintiff lacks the capacity to sue and has no attorney, conservator, or guardian ad litem, and therefore...
2020.03.12 Motion for Leave to File Amended Complaint 668
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2020.03.12
Excerpt: ...tiff's motion for summary judgment from June 2, 2020 to July 19, 2020 at 3:30 p.m. in Dept. 502. If defendant desires to move for summary adjudication, or summary judgment concerning the new eighth and ninth causes of action, it may do so in two ways. It may file a Supplemental Notice of Motion, Memorandum of Points and Authorities, Separate Statement, and any new evidence, relating to the eighth and ninth causes of action only, to be heard on Ju...
2020.03.12 Demurrer, Motion to Strike 582
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.03.12
Excerpt: .... (e), (f).) To grant defendants' motion to strike portions of the complaint, in part, and deny, in part, as discussed below. (Code Civ. Proc. §§ 435, 436.) To grant 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: Plaintiff has failed to allege any facts showing that he complied with the Government Tor...
2020.03.12 Demurrer 747
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2020.03.12
Excerpt: ...he entity operating as Jack's Resort) and its members, officers, employees and agents. One of those defendants is Susan Lanier, a registered unlawful detainer assistant, who received rent payments on behalf of S.S.M.A. as its agent and had a lead role in trying to unlawfully evict the plaintiffs. (Complaint ¶¶ 7, 24.) Lanier also prepared and served the notices of evictions that the plaintiffs received. (Complaint ¶ 87.) On the notices Lanier ...
2020.03.11 Motion for Attorney's Fees 838
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2020.03.11
Excerpt: ...'s December 12, 2019 Minute Order adopting the tentative ruling stated: “Plaintiff's prior motion for pre‐appeal fees is hereby set for Tuesday, February 4, 2020 at 3:30 p.m. in Department 502.” The order did not authorize additional briefing. Accordingly, the court disregards all documents on the issue of pre‐appeal attorney's fees filed by the parties after December 12, 2019 and awards no fees for the preparation of those filings. CPRA ...
2020.03.11 Demurrer, Motion to Strike 728
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2020.03.11
Excerpt: ...ion, as well as based upon the economic loss rule and the statute of limitations. Defendant also moves to strike punitive damages. For the reasons provided below, the court does not find defendant's arguments compelling. I. Demurrer based upon Code of Civil Procedure section 430.10, subdivision (e) a. Cause of action four: fraudulent inducement – concealment To state a claim for concealment, plaintiff must allege: (1) defendant concealed or sup...
2020.03.10 Motion to Declare Case Complex 249
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.03.10
Excerpt: ....) To deny the application of John C. Richter for admission to the bar of this court pro hac vice, without prejudice. (Cal. Rule of Court, rule 9.40, subd. (c).) To overrule the demurrer of defendant Independent Financing Services (“IFS”). (Code Civ. Proc. § 430.10, subd. (e).) To order defendant IFS to file and serve its answer to the first amended complaint within 10 days of the date of service of this order. Explanation: Complex Case Moti...
2020.03.10 Demurrer, Motion to Strike 078
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.03.10
Excerpt: ...ll have ten (10) court days from the date of service of the minute order in which to file a Third Amended Complaint. All new or additional allegations are to be set forth in boldface typeset. Explanation: Demurrer Defendant demurs to the second cause of action in the Second Amended Complaint for intentional infliction of emotional distress allegedly suffered by Plaintiff Brandon Griffith. The Court sustained a demurrer to the same cause of action...
2020.03.05 Special Motion to Strike 593
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2020.03.05
Excerpt: ...ree 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 claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).) As used in the statutory scheme, “… act in furtherance of a person's right of petition or free speech...
2020.03.05 OSC Re Contempt and Sanctions 689
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2020.03.05
Excerpt: ...ee of Plaintiff Hanford Community Hospital and was employed to perform laboratory testing. According to the papers, during the course of a deposition in an unrelated matter, Defendant admitted to taking patient records home, as well as e‐mailing PDF copies of patient records between 2015 and the present. He saved this information to his home computer and other devices. He also acknowledged that he did not have Plaintiff's permission or authoriz...
2020.03.05 Motion to Seal, for Summary Judgment, Adjudication 499
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2020.03.05
Excerpt: ...sed judgment consistent with this Court's ruling on the motion for summary judgment. Explanation: Seal The court has “broad authority to protect confidential commercial information[.]” (Fireman's Fund Ins. Co. v. Superior Court (1991) 233 Cal.App.3d 1138, 1141.) However, the court may order that a record be filed under seal only if it expressly finds facts that establish: (1) an overriding interest that overcomes the right of public access to...
2020.03.05 Motion for Determination of Attorney Fees and Costs Under Settlement Agreement 719
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.03.05
Excerpt: ... prevailing buyer in 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 reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code, § 1794, subd. (d).) The statute “requires the tria...
2020.03.05 Demurrer 554
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2020.03.05
Excerpt: ...al notice.” (Code Civ. Proc., § 430.30, subd. (a); see Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “ ‘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...
2020.03.04 Motion to Strike 031
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.03.04
Excerpt: ...for Attorney Fees The allegations and prayers for attorney fees on the first four causes of action1 are clearly based only on the purchase agreement and thus only apply to defendant Owens, which plaintiff appears to acknowledge. Thus, the motion to strike as to these allegations/prayers is denied. On plaintiff's recent motion to amend, plaintiff moved to re‐add the prayer for attorney fees on the fifth and sixth causes of action, based on the �...
2020.03.04 Motion for Summary Judgment 228
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.03.04
Excerpt: ...d. (c).) A moving party defendant is entitled to summary judgment if it establishes a complete defense to the plaintiff's causes of action, or shows that one or more elements of each cause of action cannot be established. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) A moving defendant bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. Only when the initial burden ...
2020.03.04 Demurrer 434
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2020.03.04
Excerpt: ...of the date of service of this order. All new allegations shall be in boldface. Explanation: Plaintiff Lisa Kauls, who is the mother of decedent Nicholas Kauls, has alleged a single cause of action for medical negligence based on “contacts and communications” by defendant Fresno Community Hospital's employees with plaintiff, which caused her emotional distress and suffering. (Attachment to Complaint MM‐1, ¶ 4.) She also alleges that defend...
2020.03.04 Demurrer 031
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.03.04
Excerpt: ...hrust of Kerwin Jackson and KJ Worldwide Investments, Inc.'s (collectively, agent defendants) demurrer to the second amended complaint is that plaintiff's claims arise out of representations and warranties made in a sales transaction. They argue that they did not sign any of the disclosure documents. Their names do not appear on any of the contracts or disclosure documents, and they were not sellers of the property. They did not make any represen...
2020.03.03 Demurrer 415
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2020.03.03
Excerpt: ...ll be in boldface type font. Explanation: “ ‘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.) Third Cau...
2020.03.03 Motion for Summary Adjudication 520
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.03.03
Excerpt: ...sed judgment consistent with the court's order. Explanation: The court notes that all plaintiffs have dismissed the action against defendant David Hovannisian except plaintiff Juan Sagrero. The court therefore addresses the motion as it is directed to plaintiff Juan Sagrero only. Summary adjudication is the proper mechanism for challenging a particular, “cause of action, an affirmative defense, a claim for punitive damages, or an issue of duty....
2020.03.03 Motion to Compel Further Responses 401
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.03.03
Excerpt: ... to what is intended regarding tolling on the form “Order on Request for Pretrial Discovery Conference” (Local Form TCV‐72 R10‐18). This form order was created in conjunction with Fresno County Superior Court Local Rule 2.1.17, which states: Filing a request for a Pretrial Discovery Conference tolls the time for filing a motion to compel discovery on the disputed issues for the number of days between the filing of the request and issuance...
2020.03.03 Motion to Quash Service of Summons 848
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2020.03.03
Excerpt: ...his Court can exercise jurisdiction over defendant LG Chem, Ltd. The hearing will take place at 3:30 p.m. on Tuesday, May 5, 2020 in Department 502. Any supplemental briefing must be filed by Plaintiff no later than April 21, 2020. Any objections or reply must be filed no later than April 28, 2020. Explanation: Specially‐appearing defendant LG Chem, Ltd. (“LG Chem”) moves to quash the service of summons on it by Plaintiff Eric Fletcher, ind...
2020.03.03 Motion to Quash Summons 500
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2020.03.03
Excerpt: ...id acts of unlawful sexual conduct by Bispham. Johnson moves to quash the summons on the ground the court lacks personal jurisdiction over him because he lives in Washington State and no longer has continuing contacts with California. Where jurisdiction is challenged by a non‐resident defendant, the burden of proof is upon the plaintiff to demonstrate that “minimum contacts” exist between defendant and the forum state to justify imposition ...
2020.02.27 Petition to Compel Arbitration 541
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.02.27
Excerpt: ...mits an arbitration agreement, purportedly signed by plaintiff Carmon. The agreement is dated September 6, 2012, and is signed by plaintiff Carmon as decedent's “Legal Representative/Agent.” (Healy Dec., filed Nov. 18, 2019, at Ex. A.) Plaintiffs oppose on several bases. Notably, plaintiffs object to defendant's declaration in support of the petition. They argue that the arbitration agreement lacks foundation. Plaintiffs also argue that defen...
2020.02.27 Motion to Quash Service of Summons and Complaint 572
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.02.27
Excerpt: ... Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1229.) Therefore, the statutory ground of this motion is that the court lacks jurisdiction over defendant. (Code Civ. Proc., § 418.10, subd. (a)(1).) Until proper service is made on a defendant, he is under no duty to respond in any way to a defectively served summons. This is so even if he has actual knowledge of the action. That knowledge does not dispense with statutory requirements for ...
2020.02.27 Motion to Compel Further Discovery Responses 278
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2020.02.27
Excerpt: ...17.1 as to RFA nos. 10 and 12‐15, and Request for Production of Document nos. 36‐39, produce all responsive documents, and supplement the privilege log. (Code Civ. Proc. §§ 2030.300(c); 2031.310(c); Code Civ. Proc. § 2033.290(c).) Explanation: Initially, the court notes that all requests for judicial notice are granted, with the exception of Infinity's Exhibit 1 (insurance policy), due to lack of authentication. Requests for Admission Infi...
2020.02.27 Motion for Validation of Converted Contract 887
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2020.02.27
Excerpt: ...e summons, the government would have a valid defense, preventing that interested party from further challenging the government's proposed action.” San Diego v. San Diegans for Open Government (2016) 3 Cal. App. 5th 568, 579. “The validating statutes should be construed so as to uphold their purpose, i.e., ‘the acting agency's need to settle promptly all questions about the validity of its action.” McLeod v. Vista USD (2008) 158 Cal. App. ...
2020.02.27 Motion for Entry of Court Judgment 956
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2020.02.27
Excerpt: ...orders the Clerk to strike the defaults entered against the Defendants on the grounds that the various discrepancies in the proofs of service render them defective. Each proof of service indicates that Defendants were served at a business located at 1236 W. Shaw Ave., Fresno CA 93711. However, the declarations of diligence (which is on a document entitled “Non Service Report”) for each defendant describes this as a residential address. Furthe...
2020.02.27 Demurrer 596
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2020.02.27
Excerpt: ...n the FAC for failure to state facts sufficient to constitute a cause of action. HMA argues that plaintiff has not adequately alleged facts showing that plaintiff's failed transmission was a part that should have been covered under the Extended Emissions System Warranty mandated by California law, which requires parts for emissions systems in Partial Zero Emissions Vehicles (PZEV's) to be warranted for 15 years or 150,000 miles, whichever comes f...
2020.02.26 Motion for Summary Judgment, Adjudication 199
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.02.26
Excerpt: ...e of April 20, 2020, is vacated, and the parties shall appear at a Case Management Conference on June 16, 2020, at 3:30 p.m., in Department 403 to determine trial readiness. Explanation: This motion largely rests on the court's prior order deeming certain Requests for Admissions (RFAs) as being admitted. Any matter admitted in response to an RFA is “conclusively established” against the party making the admission unless the court has permitte...
2020.02.26 Demurrer, Motion to Strike 204
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2020.02.26
Excerpt: ... (e).) To deny the motion to strike. (Code Civ. Proc. §§ 435, 436.) To grant leave to amend as to the portions of the cross‐ complaint to which the demurrer has been sustained. Defendants/crosscomplainants shall serve and file their second amended cross‐complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer ‐ Second Cause of Action: “This covenant [of good faith and...
2020.02.25 Demurrer, Motion to Strike 677
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2020.02.25
Excerpt: ...l run from service of the order by the clerk. To grant the motion to strike the prayer for punitive damages. (Code Civ. Proc. § 435, 431.10(b).) To deny the motion to strike the attachments to the Complaint. Explanation: On July 22, 2019 plaintiff filed his Complaint against defendant John Emerzian. The Judicial Council form complaint indicates that the action is for medical malpractice and defamation. There are no cause of action attachments. I...
2020.02.25 Application for Default Judgment 402
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.02.25
Excerpt: ...for lack of evidence showing how the requested damages and interest were calculated. The matter was continued to allow plaintiff to submit additional evidence. Plaintiff has now submitted a supplemental declaration from its First Vice President, Paul Thaxter, regarding computation of the damages and interest. The declaration includes an attachment which shows the principal amounts, payments made, and interest on the debt. However, the attachment ...
2020.02.20 Motion for Class Certification 685
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2020.02.20
Excerpt: ... administrator must be submitted with the proposed notice. Plaintiff is to pay for the notice, subject to recovery of the sums paid as costs. Explanation: 1. Records Lodged Under Seal The Court has not been presented with any order or agreement for sealing of materials in this case. No motion has been filed. The Court's review of the materials shows no basis for sealing the motion or points and authorities, and those shall be placed in the public...
2020.02.20 Demurrer 528
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2020.02.20
Excerpt: ... Wachovia Mortg. Corp. (2011) 198 Cal.App.4th 737, 746.) Albeit, the running of the statute must appear “clearly and affirmatively” from the face of the complaint. It is not enough that the complaint might be time‐barred. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42; Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324‐325; Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222 Cal.A...
2020.02.20 Motion to Confirm Arbitration Award 393
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2020.02.20
Excerpt: ...ation: I. Motion to Confirm Any party to an arbitration in which an award has been made may petition the court to confirm the award. The petition shall name as respondents all parties to the arbitration and may name as respondents any other person bound by the arbitration award. (Code Civ. Proc., §1285.) A petition shall: (a) set forth the substance or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence ...
2020.02.20 Motion for Leave to File Amended Complaint 243
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2020.02.20
Excerpt: ...nded Complaint to correct the Vehicle Identification Number (VIN) for the automobile that is subject to the claims under the Song‐Beverly Act. Defendant filed a late opposition, noting in the supporting declaration that it did not receive the moving papers. The Court would be inclined to continue the hearing to allow Plaintiff to file a reply brief should Plaintiff request oral argument and seek such a continuance at the hearing. The court's di...
2020.02.20 Petition to Vacate Arbitration Award 393
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2020.02.20
Excerpt: ... vacate the award if the court determines any of the following: (1) The award was procured by corruption, fraud or other undue means. (2) There was corruption in any of the arbitrators. (3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator. (4) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted. (5) The rights...
2020.02.19 Motion for Summary Judgment, Adjudication 962
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.02.19
Excerpt: ...to the first through fourth causes of action only. A First Amended Complaint consistent with this ruling shall be filed and served within 10 days from the clerk's service of this minute order. New allegations shall be in boldface type font. The trial date, mandatory settlement conference, and trial readiness conferences are vacated. A status conference is set for March 26, 2020, at 3:30 p.m. in Department 503. Explanation: Initial Procedural Matt...
2020.02.19 Motion for Summary Judgment, Adjudication 044
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2020.02.19
Excerpt: ...f law. (Code Civ. Proc. §437c(c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) “The [summary judgment] procedure is drastic and should be used with caution in order that it may not become a substitute for existing methods of determination of issues of fact. Affidavits of the moving party must be strictly construed and those of [the] opponent liberally construed. The opposing affidavit must be accepted as true, and need not be composed wh...
2020.02.19 Motion for Leave to File Complaint and to Bifurcate 100
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2020.02.19
Excerpt: ...otion for Leave to File Cross‐Complaint A defendant may cross‐complain against a third person not yet a party to the action where the cause of action asserted “(1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against [it] or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against [it].” (Code Civ. Proc. §428.1...
2020.02.19 Demurrer, Motion to Strike 495
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2020.02.19
Excerpt: ...the general demurrers with leave to amend. To grant the motion to strike. Plaintiffs shall file and serve a Third Amended Complaint in conformity herewith within 10 days of the clerk's mailing of this minute order. New allegations shall be in boldface type font. Explanation: 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 co...
2020.02.19 Demurrer 480
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2020.02.19
Excerpt: ...eave to amend. Plaintiffs will have ten (10) court days from the date of service of this order to file a Second Amended Complaint setting forth a more thorough factual basis for the punitive damages, if they can. If Plaintiffs do not file a Second Amended Complaint, then Defendant will have twenty (20) court days from the service of this order to file a response to the First Amended Complaint. Any new or amended allegations are to be set forth in...
2020.02.11 Demurrer 730
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2020.02.11
Excerpt: ...ute order. New allegations/language must be set in boldface type. Explanation: Fourth Cause of Action: Unjust Enrichment “The elements of an unjust enrichment claim are the “receipt of a benefit and [the] unjust retention of the benefit at the expense of another.” (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593.) “However, the mere fact that a person benefits another is not of itself sufficient to require the other to ma...
2020.02.11 Demurrer 444
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2020.02.11
Excerpt: ...or the equitable estoppel claim as set forth below, if she can. Plaintiff shall have ten (10) court days from the date of notice of this order in which to file a Third Amended Complaint. Any new or additional allegations are to be set forth in boldface typeset. Explanation: Defendants demur to the complaint, as well as to the First, Fourth, Fifth, Sixth, Seventh, and Eighth Causes of Action. In ruling on the demurrer to the First Amended Complain...
2020.02.06 Motion to Quash Service of Summons 406
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2020.02.06
Excerpt: ... Cal.App.4th 1042, 1049.) However, “[u]nsigned invoices . . . cannot on their own create a contract or add terms to a contract.” (C9 Ventures v. SVC‐West, L.P. (2012) 202 Cal.App.4th 1483, 1501, see also India Paint & Lacquer Co. v. United Steel Products Corp. (1954) 123 Cal.App.2d 597, 607‐608 [““[t]he prevailing rule is that an invoice, standing alone, is not a contract . . . and a buyer is ordinarily not bound by statements thereon...
2020.02.06 Motion for Summary Judgment 549
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2020.02.06
Excerpt: ...lish at least one element of the cause of action.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853. If a defendant makes this showing, the burden shifts to the plaintiff to demonstrate that one or more material facts exist as to the cause of action or as to a defense to a cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) In a summary judgment motion, the pleadings determine the scope of relevant issues. (Nieto v. Blue Shiel...

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