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2019.9.11 Motion for Summary Judgment, Adjudication 732
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.9.11
Excerpt: ...d Fred Avalli. (Code Civ. Proc. § 437c.) Explanation: With regard to the first cause of action for breach of contract, plaintiff has met its burden of producing evidence showing that defendants breached their agreement with plaintiff, and that plaintiff was damaged as a result. The elements of a breach of contract claim are (1) the existence of a contract between the parties, (2) plaintiff's performance or excuse for nonperformance, (3) defendan...
2019.9.11 Motion for Protective Order, to Quash 114
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.9.11
Excerpt: ...for discovery over trial by surprise, must construe the facts before it liberally in favor of discovery, may not use its discretion to extend the limits on discovery beyond those authorized by the Legislature, and should prefer partial to outright denials of discovery. [Citation.]” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540; see Code Civ. Proc. §2017.010.) “Unless otherwise limited by order of the court in accordance with this tit...
2019.9.11 Application for Default Judgment 412
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.9.11
Excerpt: ...efault judgment form in conjunction with its application. In addition, plaintiff has not submitted a proposed default judgment for the court's signature. Furthermore, plaintiff has not dismissed the Doe defendants against whom it is not seeking a default judgment. There is also some ambiguity about the requested default judgment. Plaintiff seeks a declaration that its first deed of trust has priority over other claims against the property, based ...
2019.9.10 Motion for Stay 971
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.9.10
Excerpt: ...There are two categories of evidence plaintiff Jane Doe (“plaintiff”) claims she cannot obtain while the criminal case of defendant Francisco Peña (“Peña”) is pending: (1) answers to deposition questions to which Peña asserted his Fifth Amendment privilege during his November 2018 deposition, and (2) the contents of plaintiff's cell phone which has been in the custody of the Fresno County District Attorney since shortly after Peña was...
2019.9.10 Motion for Enforcement of Settlement 738
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.9.10
Excerpt: ...can attached to Debbie Raven's declaration, except that the submissions need also provide values for each item listed. If such evidence shows any party to this case taking a loss on their one‐third share of the assets, or obtaining a higher percentage than one‐third, briefs explaining why such loss or gain is justified need also be filed. Any such briefing shall be filed by October 10, 2019, and a further hearing will be held on October 24, 2...
2019.9.10 Demurrer, Motion to Strike Punitive Damages 647
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.9.10
Excerpt: ...mend. Defendant Taja Investments, LLC, is granted 10 days' leave to file its answer to the complaint, with the time to run from service by the clerk of the minute order. Explanation: Standing to Sue Defendant begins by arguing that plaintiff does not have legal capacity to sue, and refers to Code of Civil Procedure section 430.10, subdivision (b), but then it argues that plaintiff is not a real party in interest and therefore lacks standing, with...
2019.9.10 Demurrer 679
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.9.10
Excerpt: ...0 days of the date of service of this order. All new allegations shall be in boldface. 3 Explanation: First, to the extent that plaintiff has objected that defendant's demurrer contains a number of typographical errors that render the demurrer overly confusing with regard to which causes of action and parties are at issue, defendant has now filed notices of errata that clarify that the demurrer relates to the first and fifth causes of action for ...
2019.9.10 Demurrer 622
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.9.10
Excerpt: ...ducement), and fourth (intentional infliction of emotional distress) causes of action, and without leave to amend as to fifth (slander of title) and sixth (declaratory relief) causes of action. Plaintiffs are granted 30 days' leave to file the Fourth Amended Complaint, which will run from service by the clerk of the minute order. Explanation:  First Cause of Action: Standing In ruling on a demurrer, the trial court is obligated to look past th...
2019.9.10 Demurrer 618
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.9.10
Excerpt: ...breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917, internal citation and quotation marks omitted.) In the instant action, Plaintiff alleges that he was employed by the State as an inhome caregiver; was a member of the union; was told that when he began work, he would be provided with medical insurance within a few months; and that medical insurance was not provided for over ...
2019.9.10 Demurrer 181
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.9.10
Excerpt: ...t briefing on the issue of a stay. The parties were advised that the court would consider the following factors: the status of the foreign action; the convenience of the parties; the seriousness of the threat of multiple litigation; and the competing interests of the two forums. (Wong v. Tenneco, Inc. (1985) 39 Cal.3d 126; Leadford v. Leadford (1992) 6 Cal.App.4th 571, 575; see Minute Order, filed August 7, 2019, p. 2.) The parties submitted supp...
2019.9.10 Motion for Trial Preference and to Set Trial Date 749
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.9.10
Excerpt: ...dure section 36, subdivision (a), A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (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. (Code Civ. Proc., § 36, subd. (a).) “U...
2019.8.29 Motion for Summary Adjudication 090
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.8.29
Excerpt: ...n of bullying, harassment and discrimination based on race by coworker Joyce Kennedy and supervisor Sharon Murphy. Plaintiff was terminated following an investigation into a potential threatening or harassing email sent by plaintiff to Murphy. Plaintiff contends that the termination was pretextual. Defendants move for summary adjudication of plaintiff's fifth cause of action for wrongful termination in violation of public policy. When a plaintiff...
2019.8.29 Motion for Summary Judgment, Adjudication 145
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2019.8.29
Excerpt: ...tive, summary adjudication on the Complaint filed by Plaintiff Felix Rocha. Mr. Rocha filed a complaint on January 16, 2018 alleging injuries from a motor vehicle accident and general negligence. The injuries were alleged to have occurred on January 18, 2016 and stemmed from the negligent operation of one of Defendant Mid Valley Disposal's fork lift trucks by co‐Defendant Toby Taylor. To obtain summary judgment, “all a defendant needs to do i...
2019.8.29 Motion for Summary Judgment 212
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.8.29
Excerpt: ...mmary judgment order. Explanation: As the moving parties, defendants bear the initial burden of proof to show that plaintiff cannot establish one or more elements of his causes of action or to show that there is a complete defense. (Code Civ. Proc. § 437c(p)(2).) Only after the moving party has carried this burden of proof does the burden of proof shift to the other party to show that a triable issue of one or more material facts exists – and ...
2019.8.29 Petition to Compel Arbitration 256
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.8.29
Excerpt: ...dants/petitioners are correct that Code of Civil Procedure section 1290.6 requires a party responding to a petition to compel arbitration to serve and file its response within 10 days after service, the Court will consider plaintiffs/respondents' opposition on its merits, as no prejudice to defendants/petitioners is apparent. (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 847; see also Hoover Community Hotel Development Corp. v....
2019.8.28 Motion to Strike or Tax Costs 439
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.8.28
Excerpt: ...Costs are taxed by $53,855.58. Costs awarded to Triangle Truck against the Srabians therefore total $7,278.83. Explanation: The parties to this case filed cross‐motions to strike and/or tax costs and for attorney's fees after a jury trial. By order dated July 31, 2019, the Court ruled on all the motions except for the Srabians' motion to strike and/or tax the costs of Triangle Truck. In its order, the Court noted that “[w]here co‐parties jo...
2019.8.28 Motion to Set Aside and Vacate Default 937
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2019.8.28
Excerpt: ...fendant Richard Greene has moved to vacate and set aside the default entered in this case on February 15, 2019. Defaults are disfavored and any doubts existing as to setting aside a default should be resolved in favor of a hearing on the merits. (Berman v. Klassman (1971) 17 Cal.App.3d 900, 910.) Reversal is particularly appropriate where relieving the default will not seriously prejudice the opposing party. (Elston v. City of Turlock (1985) 38 C...
2019.8.28 Motion to Compel Production of Docs 201
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.8.28
Excerpt: ... by the parties and submitted to the court for signature. Explanation: Plaintiffs originally moved to compel nonparty Fresno County Public Defender (“FCPD”) to produce documents responsive to seven requests for production of documents contained in a deposition subpoena. Following a continuance so that the parties could file a joint separate statement of items in dispute, the discovery dispute has been narrowed to four categories of documents ...
2019.8.28 Demurrer, Motion to Strike, Request for Sanctions 929
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.8.28
Excerpt: ...), (f).) To grant the motion to strike the allegations and prayer regarding punitive damages from the cross‐complaint. (Code Civ. Proc. §§ 435, 436.) To grant the motion to strike the conspiracy claim against plaintiff's counsel and her law firm, for failure to comply with Civil Code section 1714.10 before filing the claim. To grant leave to amend. To deny both parties' requests for sanctions against each other. (Code Civ. Proc. §§ 128.5, 1...
2019.8.28 Motion to Compel Arbitration and Stay Action 536
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2019.8.28
Excerpt: ...the completion of arbitration. Explanation: The parties have agreed to submit plaintiff's claims to arbitration pursuant to a Dispute Resolution Agreement. The parties are in disagreement as to the interpretation of paragraph 5 of the Agreement, and have stipulated to have the court resolve the issue. Paragraph 5 provides: Arbitration will be conducted within the county in which the employee works for CMC or last worked for CMC unless all parties...
2019.8.28 Motion for Reduction of Judgment Pursuant to Government Code Section 985 164
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.8.28
Excerpt: ...s motion and all other proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby. (Code Civ. Proc., § 916, subd. (a).) By operation of law, this Court lacks jurisdiction to hear the motion and therefore vacates the hearing. Once the appeal is no longer pending, the moving party may contact the law and motion clerk to reschedule the hearing on the motion. Explanation: On April...
2019.8.28 Demurrer, Motion to Strike 261
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2019.8.28
Excerpt: ...spect to causes of action: four (breach of oral contract), five (breach of implied‐infact), and six (promissory estoppel). To deny defendant's motion to strike plaintiff's prayer for costs. To deny defendant's motion to strike plaintiff's prayer for restitution. Plaintiff is granted ten days' leave to amend. All changes must be in bold. The time in which an amendment may be filed will run from service by the clerk of the minute order. Explanati...
2019.8.28 Demurrer 741
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.8.28
Excerpt: .... (1953) 38 Cal.2d 273. There, a couple was photographed by an employee in an affectionate pose at the LA Farmer's Market, and the photograph was published with an accompanying article in Ladies Home Journal, without their permission. [T]he caption under the picture describes it as “love at first sight” and the article says such love is based on 100 per cent sex. It is not unreasonable to believe such would be seriously humiliating and distur...
2019.8.28 Motion for Final Approval of Class Settlement 103
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.8.28
Excerpt: ...y September 13, 2019. To set a return date of Thursday, May 21, 2020 for a report to the Court of the final distribution and amendment of the judgment pursuant to Code of Civil Procedure section 384(b). 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 appro...
2019.8.27 OSC Re Dismissal for Failure to Join Indispensable Parties 171
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.8.27
Excerpt: ... court days of service of this order. A final proposed judgment is to be presented to the Court within ten (10) court days of service of this order. Explanation: Pursuant to the Stipulation and Order filed June 20, 2019, this case is set for several matters pending from previous hearings before this Court. For the reasons stated below, only the Order to Show Cause re: Dismissal for Failure to Join Indispensable Parties (and the Order to Show Caus...
2019.8.27 Motion to Set Aside Default 856
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2019.8.27
Excerpt: ...ken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b); Lorenz v. Commercial Accept. Ins. Co. (1995) 40 Cal.App.4th 981, 989.) In other words, to secure relief, the moving party must present a reasonable excuse as to why she was prevented from presenting her case to the court. (See Wilcox v. Ford (1988) 206 Cal.App.3d 1170, 1176; Guenter v. Lomas & Nettleton Co. (198...
2019.8.27 Motion for Summary Judgment 696
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2019.8.27
Excerpt: ... days of the date of service of this order. Explanation: Defendants argue that plaintiff expressly assumed the risk of being hit by a foul ball when he purchased his ticket for the game. The ticket contained an express release which stated, “Holder of this ticket assumes all risks incidental to the game of baseball, including specifically (but not exclusively) the danger of being injured by thrown or batted balls. Holder agrees that the Fresno ...
2019.8.27 Motion for Leave to Amend 235
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2019.8.27
Excerpt: ...�The court may, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading[.]” (Code Civ. Proc. §473(a)(1).) “[L]eave to amend a pleading should be liberally granted as long as there is no timeliness problem under a statute of limitations or prejudice to the opposing party. [Citations.]” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240; Glaser v. Meyers (1982) 137 Cal....
2019.8.27 Motion for Class Certification and Preliminary Approval of Settlement 920
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.8.27
Excerpt: ...which states, in the pertinent part: “The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” The parties can stipulate to permit an amendment, but they still need a Court order before an amended pleading may be validly filed. Shoul...
2019.8.27 Motion for Change of Venue 707
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2019.8.27
Excerpt: ...any generally applicable venue statutes, but relies, in principle part, on Welfare and Institutions Code §§6600, et seq. and, specifically, section 6601, subdivision (i) (effective January 1, 2019). A plaintiff's (or, in this case, a Petitioner's) choice of venue is presumptively valid, and a party moving to transfer venue bears the burden of demonstrating that the plaintiff's chosen venue is improper. (Battaglia Enterprises, Inc. v. Superior C...
2019.8.27 Motion for Summary Judgment, Adjudication 050
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2019.8.27
Excerpt: ...iff to call for oral argument. If defendant does not call for oral argument, this Tentative Ruling will be adopted without continuance. Explanation: Proof of Service Issue: One of the arguments plaintiff made was that the motion was not timely served. The original proof of service attached to the Notice of Motion attempts to indicate personal service of the papers on May 28, 2019 – which would be two days before the 75‐day deadline given in C...
2019.8.27 Demurrer, Motion to Strike 242
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.8.27
Excerpt: ...rtions of the First Amended Complaint Tentative Ruling: To sustain the demurrer of the City of Coalinga (“City”) in its entirety, with leave to amend as to the second cause of action, only. To grant City's motion to strike, without leave to amend. To sustain the demurrer of defendants Marissa Trejo, Shannon Jensen, Vivian Sauceda, and Jasmin Bains (“individual defendants”) in its entirety, with leave to amend. To grant the individual defe...
2019.8.22 Motion to Strike 910
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.8.22
Excerpt: ...ule is codified at Code of Civil Procedure section 1856. It is a rule of evidence, not of pleading, and requires evidence before it can apply—that there be proof that a writing was intended to be the final expression of an agreement. The Cross‐Complaint states that it was not and that there were oral and written parts of the “Joint Venture” agreement. (Cross‐Complaint, ¶ 13). There are also several exceptions or situations where the do...
2019.8.22 Motion for Terminating Sanctions 650
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2019.8.22
Excerpt: ...Peel | Garcia within 30 days of the clerk's service of this minute order. Explanation: Disobeying a court order to provide discovery is a misuse of the discovery process. (Code Civ. Proc., § 2023.010.) And courts may impose a terminating sanction for misuse of the discovery process. (Code Civ. Proc., § 2023.030.) But before imposing a terminating sanction, courts should usually grant lesser sanctions: e.g., orders staying the action until defen...
2019.8.22 Demurrer 910
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.8.22
Excerpt: ...ts in a string as to why the Fifth Cause of Action in the First Amended Complaint is improper. To the extent possible, the Court addresses the grounds listed in the notice, but notes that the manner of presentation creates confusion. 2. Statute of Limitations This is a basis for a general demurrer, as where the bar of the statute of limitations appears from the face of the pleading, it fails to state facts sufficient to allege a valid cause of ac...
2019.8.22 Motion to Compel Compliance with Subpoena 221
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.8.22
Excerpt: ...scovery Act provides that a personal service of a deposition subpoena may command a third party deponent to produce business records on request. (Code Civ. Proc., § 2020.020, subd. (c).) Code of Civil Procedure section 1987.1 provides, in relevant part: “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things . . . at the taking of a deposition, the court, upo...
2019.8.21 Motion to Set Aside and Vacate Default 937
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2019.8.21
Excerpt: ... of a hearing on the merits. (Berman v. Klassman (1971) 17 Cal.App.3d 900, 910.) Reversal is particularly appropriate where relieving the default will not seriously prejudice the opposing party. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 235 (superseded by statute on other grounds as stated in Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 64).) Defendants make their motion under Code of Civil Procedure §473, subdivision (b)...
2019.8.21 Motion to Quash Service of Summons 154
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.8.21
Excerpt: ...filed motions to quash service of summons on the grounds that the manner of service actually performed was not “personal service” in accordance with Code of Civil Procedure §415.10, et seq. According to the representations by Plaintiff in her opposition, the summons and complaint were left in envelopes with the secretary at the office of Defendant School District. Defendants claim the envelopes were unmarked, but Plaintiff has provided photo...
2019.8.21 Motion to Compel Arbitration of Complaint and Stay Proceedings 993
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.8.21
Excerpt: ...s asserted against Nakidi in this lawsuit and that Plaintiff has not made a sufficient showing that Nakidi waived the right to arbitrate the agreement or that "there is a possibility of conflicting rulings on a common issue of law or fact" if the court orders arbitration of the claims against Nakidi but not the claims against Defendant Teamsoft Technologies, LLC ("Teamsoft") in this action. (See C.C.P. § 1281.2; 9 U.S.C. § 2.) A. Existence and ...
2019.8.21 Motion for Summary Judgment, Adjudication 132
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.8.21
Excerpt: ...to submit to this Court, within five (5) days of service of the minute order, a proposed judgment consistent with this Court's summary judgment ruling. Explanation: Summary Judgment 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. Citigroup (2009) 47 Cal.4th 610, 618.) The moving party bears the ini...
2019.8.21 Motion for Leave to File Amended Answer 388
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2019.8.21
Excerpt: ...nation: Respondent seeks leave to amend its answer to assert a fifth affirmative defense, that being a statute of limitations defense. Judicial policy favors resolution of cases on the merits, and thus the court's discretion as to allowing amendments will usually be exercised in favor of permitting amendments. This policy is so strong, that denial of a request to amend is rarely justified, particularly where “the motion to amend is timely made ...
2019.8.21 Demurrers 899
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2019.8.21
Excerpt: ...ropriate procedure for determining the truth of disputed facts.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113–114, internal citations and quotation marks omitted.) It is error to sustain a demurrer where plaintiff “has stated a cause of action under any possible legal theory. In assessing the sufficiency of a demurrer, all material facts pleaded in the complaint and those which arise by reasonable implicati...
2019.8.21 Demurrer 857
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2019.8.21
Excerpt: ... order. Explanation: Standing Here, defendant JPMorgan Chase Bank argues that plaintiff lacks standing to challenge the foreclosure proceedings because he does not (and cannot) allege that he has a relationship with Chase. In support of this argument, defendant JPMorgan Chase Bank cites to the following cases: (1) Mega Life & Health Ins. Co. v. Super. Ct. (Mega Life) (2009) 172 Cal.App.4th 1522, 1528‐32; (2) Hatchwell v. Blue Shield of Cal. (Ha...
2019.8.21 Motion to Amend Complaint 792
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.8.21
Excerpt: ... Explanation: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading . . . .” (Code Civ. Proc. § 473(a)(1).) The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596; Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) The motio...
2019.8.20 Demurrer, Motion to Strike Punitive Damages 647
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2019.8.20
Excerpt: ...d. Defendant Taja Investments, LLC, is granted 10 days' leave to file its answer to the complaint, with the time to run from service by the clerk of the minute order. Explanation: Standing to Sue Defendant begins by arguing that plaintiff does not have legal capacity to sue, and refers to Code of Civil Procedure section 430.10, subdivision (b), but then it argues that plaintiff is not a real party in interest and therefore lacks standing, with ci...
2019.8.20 Demurrer, Motion to Strike 221
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.8.20
Excerpt: ...end. To sustain the general demurrer to the third cause of action with leave to amend. To overrule the demurrer to the fourth cause of action. To overrule the special demurrers. To grant the motion to strike enhanced remedies under the Elder Abuse Act with leave to amend. To grant the motion to strike treble damages with leave to amend. To deny the motions to strike in all other respects. A Third Amended Complaint shall be filed and served within...
2019.8.20 Motion for Leave to File Amended Complaint 244
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.8.20
Excerpt: ...motion for leave to file a First Amended Complaint. Plaintiff seeks (1) to add a new Doe Defendant, Laboratory Corporation of America, as Plaintiff's joint employer; and (2) to add a cause of action for failure to hire Plaintiff in violation of FEHA. The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) If a motion to amend is made in a timely fashion, a...
2019.8.20 Motion to Enforce Order to Compel Arbitration 071
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.8.20
Excerpt: ...urn to Department 503 on September 24, 2019, at 3:30 p.m., for the Court to assign an arbitrator. Explanation: 1. Limitations Period with Tolling Defense counsel is incorrect with respect to the statute of limitations and Code of Civil Procedure section 1281.12. Tolling adds to the time period to seek arbitration. It means that the statute of limitations does not run during the tolled period. The date on which plaintiff contends that he was termi...
2019.8.20 Motion to Seal Portions of Declaration 108
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2019.8.20
Excerpt: ... by law, court records are presumed to be open.” Subpart (d) requires very specific findings by the Court prior to allowing a record filed in connection with a non‐discovery dispute to be sealed. Same states: “The Court may order that a record be filed under seal only if it expressly find facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest support...
2019.8.20 Motion to Set Aside Entry of Default, Judgment 350
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2019.8.20
Excerpt: ...sic fraud or mistake. (Olivera v. Grace (1942) 19 Cal.2d 570, 576‐578; Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300; Bae v. T.D. Service Co. (2016) 245 Cal.App.4th 89, 97.) With regard to extrinsic mistake however, relief will be denied if the complaining party's negligence permitted the mistake to occur. Kulchar v. Kulchar (1969) 1 Cal.3d 467, 473; Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 47; see also Wils...
2019.8.20 Demurrer, Motion to Strike 425
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2019.8.20
Excerpt: ...ourt days of this order. Explanation: A general demurrer admits the truth of all material allegations and a Court will “give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context.” (People ex re. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are...
2019.8.15 Motion for Judgment on the Pleadings 044
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.8.15
Excerpt: ...ute a cause of action against that defendant. The grounds for the motion must appear on the face of the challenged pleading or from matters that may be judicially noticed. The trial court must accept as true all material facts properly pleaded[.]” (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1219, internal citations and quotation marks omitted.) “A dangerous condition exists...
2019.8.15 Motion for Summary Judgment, Adjudication 406
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.8.15
Excerpt: ...Defendants Wildwood Packing and Cooling, Inc. and Luke Woods to Continue Trial in Case Number 15CECG03406. Tentative Ruling: To deny the motion for summary judgment or, in the alternative, for summary adjudication in Case Number 15CECG03406. To grant the motion for consolidation. Case Number 15CECG03406 is thereby ordered consolidated with Case Number 18CECG03169 for all purposes. All trial dates and associated discovery deadlines are thereby ord...
2019.8.15 Motion to Compel Arbitration 420
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.8.15
Excerpt: ...nforceable. The petitioner (seeking to compel arbitration) bears the burden of proving the existence of an arbitration agreement by a preponderance of the evidence. The party claiming a defense bears the same burden as to the defense. (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413‐ 414.) The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement. (Engalla v. P...
2019.8.15 Motion to Permit Discovery into Sexual History 971
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.8.15
Excerpt: ...earing is required, the court will consider increasing the sanctions awarded to include plaintiff's counsel's costs/fees for appearance. All evidentiary objections are overruled. Explanation: A party bringing a motion to commence discovery into a plaintiff's sexual history must proceed by noticed motion. The moving party must provide evidence of a good faith attempt to resolve the matter informally, and must establish both: (1) specific facts sho...
2019.8.15 Motion for Summary Judgment, Adjudication 183
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.8.15
Excerpt: ...order. Explanation: This is a legal malpractice action. Plaintiff alleges that he retained defendants Nicholas Wagner and Wagner, Jones, Kopfman & Artenian to represent him in a wrongful discharge matter filed in federal court against his employer. In his causes of action for legal malpractice and breach of fiduciary duty, plaintiff alleges that SK Foods filed for bankruptcy, and defendants negligently represented him in that they (1) failed to p...
2019.8.14 Motion to Compel Initial Responses 014
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.8.14
Excerpt: ...seph A. West to pay the sum of $1,030 in sanctions to Cochran, Davis & Associates within 30 days of the clerk's service of this order. Explanation: Special Interrogatories, Set Two were served on plaintiff by mail on March 29, 2019. (Hansen Decl. ¶ 1; Ex. A.) Responses were mailed August 1, 2019, after this motion was filed June 17, 2019. (West Decl. ¶ 2.) The motion to compel the initial responses to the form interrogatories is moot, save for ...
2019.8.14 Motion to Amend Complaint 236
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2019.8.14
Excerpt: ...nce of justice, and on any terms as may be proper, allow a party to amend any pleading ... ” (Code Civ. Proc. § 473(a)(1).) The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596; Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) Plaintiffs have largely complied with Code of Civil pro...
2019.8.14 Demurrer, Motion to Strike 014
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.8.14
Excerpt: ...tion to strike punitive damage allegations with leave to amend. A Fourth Amended Complaint must be filed and served within 10 days of the clerk's service of this minute order. New allegations must be in boldface type font. Explanation: Demurrer: First Cause of Action – Breach of Insurance Contract CACI No. 2300 sets forth three elements of a claim for breach of an insurance contract by nonpayment: (1) plaintiff suffered a loss, which was covere...
2019.8.13 Motion to Strike 891
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2019.8.13
Excerpt: ...rcing a judgment. . . .” The court shall make an order allowing or disallowing the costs “to the extent justified under the circumstances.” (Code Civ. Proc., § 685.040, subd. (c).) Code of Civil Procedure section 685.070, subdivision (a), authorizes recovery of five categories of statutory costs for enforcing a judgment. Section 685.070, subdivision (b) provides, in relevant part: “Before the judgment is fully satisfied but not later tha...
2019.8.13 Motion to Strike 344
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.8.13
Excerpt: ...eing stricken under Code of Civil Procedure section 435. It appears to be appropriate to raise this issue at the pleading stage via a motion to strike. In Reply defendant cited to Interactive Multimedia Artists, Inc. v. Superior Court (Allstate Ins. Co.) (1998) 62 Cal.App.4th 1546 for this issue. However, there the motion to strike was brought as a motion in limine (Id. at p. 1550), so it was not done at the pleading stage. However, in Nationwide...
2019.8.13 Motion for Summary Judgment 677
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2019.8.13
Excerpt: ...order. Explanation: Defendant Certain Underwriters at Lloyd's London (hereinafter “Lloyd's”) has met its burden of presenting evidence showing that it is entitled to summary judgment of the two remaining causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing. Plaintiff has alleged that defendant breached the insurance contract it issued to plaintiff when it denied coverage for the accident th...
2019.8.13 Motion for Summary Judgment 141
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.8.13
Excerpt: ...or legal] cause between the breach and (4) the plaintiff's injury.” (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339.) Whether a duty exists is a question of law. (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128.) “[E]ach person has a duty to use ordinary care and is liable for injuries caused by his [or her] failure to exercise reasonable care in the circumstances. (Parsons v. Crown Disposal ...
2019.8.13 Motion for Summary Judgment 212
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2019.8.13
Excerpt: ...judgment order. Explanation: As the moving parties, defendants bear the initial burden of proof to show that plaintiff cannot establish one or more elements of his causes of action or to show that there is a complete defense. (Code Civ. Proc. § 437c(p)(2).) Only after the moving party has carried this burden of proof does the burden of proof shift to the other party to show that a triable issue of one or more material facts exists—and this mus...
2019.8.8 Petition to Approve Compromise of Minor 025
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.8.8
Excerpt: ... balance of the award to be deposited into a pooled special needs trust in order to preserve the minor's public benefits. However, petitioner must first file a petition under Probate Code section 3604 with the Probate Department, so it can confirm that the trust complies with California Rules of Court, rule 7.903, and provide for ongoing court supervision. Once that is accomplished, petitioner may refile his compromise petition with this court. I...
2019.8.8 Motion to Compel Further Responses 500
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2019.8.8
Excerpt: ...served on 10/3/18. This motion must be served within 45 days after service of a verified response (extended if served by mail, overnight delivery or fax or electronically; see Code Civ. Proc. § 1010.6(a)(4), 1013). Otherwise, the demanding party waives the right to compel any further response to the discovery. (Code Civ. Proc. §§ 2030.300(c), 2031.310(c), 2016.050; see Sperber v. Robinson (1994) 26 Cal.App.4th 736, 745.) The 45‐day time limi...
2019.8.8 Motion for Terminating Sanctions, to Amend Complaint, for Summary Judgment, Adjudication 651
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.8.8
Excerpt: ...for bringing the motion. To grant plaintiffs' motion to amend the complaint. To treat defendant's motion for summary judgment/adjudication as a motion for judgment on the pleadings, and to grant it with leave to amend. Plaintiffs are given leave to amend the causes of action now predicated on alleged Labor Code violations to state causes of action for failure to pay overtime on other bases as may be provided by law. Plaintiffs are granted 15 days...
2019.8.8 Motion for Summary Judgment 160
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2019.8.8
Excerpt: ...to the plaintiff, determines that no reasonable person would conclude the condition created a substantial risk of injury when such property is used with due care in a manner which is reasonably foreseeable that it would be used.” (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 234, internal citations and quotation marks omitted; see also Swaner v. Santa Monica (1984) 150 Cal.App.3d 789, 799.) “In making the determination of whether ...
2019.8.8 Motion for Reduction of Judgment Pursuant to Government Code Section 985 164
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.8.8
Excerpt: ...nt public entity for collateral source payments paid or obligated to be paid for services or benefits that were provided prior to the commencement of trial.” (Gov. Code, § 985, subd. (b).) A “collateral source payment” is money “paid or obligated to be paid” by “private medical programs, health maintenance organizations, state disability, unemployment insurance, private disability insurance, or other sources of compensation similar t...
2019.8.8 Motion for Leave to Amend 116
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2019.8.8
Excerpt: ...t to the applicable Local Rules and the court will reset the trial at that time. 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; 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.) Judicial policy favors resolution of all d...
2019.8.8 Motion for Class Certification and Preliminary Approval of Settlement 134
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.8.8
Excerpt: ... class action is proper. Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied). See also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: “The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether certification is appropriate.” The case so requiring is Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 620 (“Amchem”): “Confr...
2019.8.7 Demurrer, Motion to Strike 438
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2019.8.7
Excerpt: ...th of all material allegations and a Court will “give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context.” (People ex re. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) He...
2019.8.7 Demurrer, Motion to Strike 345
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.8.7
Excerpt: ...ailure to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).) To deny the motions to strike the allegations and prayers for punitive damages and attorney's fees. To grant leave to amend, except as stated below. Plaintiffs shall serve and file their second amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: A. Demurrer Untimely Opp...
2019.8.7 Demurrer 801
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.8.7
Excerpt: ...efendants demur to the first, second, and third causes of action in the complaint on the ground that there is another action pending between the same parties on the same cause of action. (Code Civ. Proc. § 430.10, subd. (c).) They claim that some of the plaintiffs in the present action have also brought the same construction defect claims in another action that was previously filed in Fresno Superior Court against the same defendants. (See Defen...
2019.8.6 Motion for Issue, Evidence, and Monetary Sanctions 044
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.8.6
Excerpt: ...n: Attorney's Fees While the fee awards should be fully compensatory, the trial court's role is not to simply rubber stamp the defendant's request. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133; Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 361.) Rather, the court must ascertain whether the amount sought is reasonable. (Robertson v. Rodriguez, supra, 36 Cal.App.4th at p. 361.) The party seeking attorney's fees has the burden of e...
2019.8.1 Motion to Set Aside Default 114
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.8.1
Excerpt: ...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, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc. §473(b).) “Where a default is entered because defendant has relied upon a codefendant or other interested party to defend, the question is whether the defendant was reasonably justified under the circumstances in ...
2019.8.1 Demurrer 374
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.8.1
Excerpt: ...demurrer to test the truth of the plaintiff's allegations or the accuracy with which [plaintiff] describes the defendant's conduct.” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) However, though “allegations of a complaint must be accepted as true for purposes of demurrer, the facts appearing in exhibits attached to the complaint will also be accepted as true and, if contrary to the allegations in the...
2019.8.1 Motion for Final Approval of Class Action Settlement, for Attorney's Fees 297
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2019.8.1
Excerpt: ... of the class. However, the court intends to reduce the amount of the class representative's incentive compensation to $6,500. The plaintiffs shall provide an order for final approval of the settlement and judgment within 10 days of the date of service of this order. If oral argument is requested, it will be heard on August 7, 2019 at 3:30 p.m. in Department 502. Explanation: Certification of the Class: The court has already granted provisional c...
2019.7.31 Motion to Strike or Tax Costs, for Attorney's Fees 439
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2019.7.31
Excerpt: ...rprises, Inc. dba Triangle Truck Center for Attorney's Fees; and (5) By Morris and Lucille Srabian for Attorney's Fees. Tentative Ruling: To continue Morris and Lucille Srabian's (“the Srabians'”) Motion to Strike and/or Tax Costs of Twin Falls Enterprises, Inc. dba Triangle Truck Center (Triangle Truck) to Wednesday, August 28, 2019, at 3:30 p.m. in Department 503. Triangle Truck may file a supplemental opposition no later than August 14, 20...
2019.7.31 Motion to Dismiss or for Judgment on the Pleadings 199
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.7.31
Excerpt: ...All other proceedings in the case will be stayed until the trustee has been added. Explanation: Defendant moves to dismiss the action on the ground that plaintiff has no standing to pursue his claims because his claims should have been listed as assets of his Chapter 7 bankruptcy estate. “Causes of action that exist prior to a bankruptcy filing become assets of the bankruptcy estate. See 11 U.S.C. § 541(a)(1); Sierra Switchboard Co. v. Westing...
2019.7.31 Motion for Summary Judgment 464
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.7.31
Excerpt: ...h was a proximate or legal cause of injuries suffered by the plaintiff.” (United States Liab. Ins. Co. v. Haidinger– Hayes, Inc. (1970) 1 Cal.3d 586, 594.) Likewise, in order to establish premises liability on a negligence theory, a plaintiff must prove duty, breach, causation and damages. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205. Defendant's motion is based solely on the theory that property owners are not liable for damages cause...
2019.7.31 Motion for Right to Attach Order 956
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2019.7.31
Excerpt: ...l be filed with the Court before the writ will be issued. Explanation: Attachment is a prejudgment remedy that allows a creditor to have a lien on the debtor's assets until final adjudication of the claim sued upon. (Code Civ. Proc., §481.010, et seq.) A creditor must follow statutory guidelines in applying for the attachment and establish a prima facie claim. (Lorber Industries of Calif. v. Turbulence, Inc. (1985) 175 Cal.App.3d 532, 535.) An a...
2019.7.31 Demurrer, Motion to Strike 184
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.7.31
Excerpt: ...Hospital & Medical Center's the motion to strike the fourth cause action and the prayer for relief for civil penalties pursuant to Health & Safety Code § 7158.3(b)(4), without leave to amend. (Code Civ. Proc. § 436(a).) Defendants shall file their answers to the Fifth Amended Complaint within 10 days of service of the order by the clerk. Explanation: Initially the court notes that Fresno Community Hospital Medical Center (“Community Hospital�...
2019.7.31 Demurrer 950
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2019.7.31
Excerpt: ...t to state a cause of action and uncertainty, without leave to amend. (Code Civ. Proc. § 430.10, subd.'s (e), (f).) Defendants shall serve and file a judgment dismissing the action as to them within 10 days. If oral argument is requested, it will be heard on August 7, 2019 at 3:30 p.m. in Department 501. Explanation: The plaintiff's second amended complaint appears to be premised on the theory that MERS had no standing to assign the note and dee...
2019.7.31 Demurrer 618
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2019.7.31
Excerpt: ...order, a proposed judgment dismissing the action as to the demurring defendants. Explanation: The SAC alleges the following causes of action: (1) intentional tort against the State of California (for failure to provide health insurance as required by law); (2) intentional tort against SIEU Local 2015 (for failure to provide health insurance); (3) intentional tort against Department of Motor Vehicles (because driver of the vehicle that caused plai...
2019.7.30 Demurrer, Motion to Strike 921
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.7.30
Excerpt: ...as moot. Cross‐Defendant J. Stanley Teixeira is directed to submit to this court, within seven (7) days of service of the minute order, a proposed judgment dismissing the third‐party cross‐complaint of Oscar Luna. Explanation: The third‐party cross‐complaint filed by Cross‐Complainant Oscar Luna (“Luna”) raises causes of action: (1) abuse of process, (2) intentional infliction of emotional distress, (3) negligent infliction of emo...
2019.7.30 Demurrer 298
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2019.7.30
Excerpt: ...ays of the date of this order. All new allegations shall be in boldface. Explanation: Under Code of Civil Procedure section 430.10, “The party against whom a complaint or cross‐complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: .. (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As...
2019.7.30 Demurrer 581
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.7.30
Excerpt: ...ourt, within seven (7) days of service of the minute order, a proposed judgment dismissing the action as to the demurring defendants. Explanation: Background On December 24, 2018, Plaintiff, representing himself, filed a form complaint, alleging a cause of action for motor vehicle negligence. As can best be determined, he was involved in a motor vehicle collision on December 24, 2015 with a vehicle driven by Cipriano Espinosa on eastbound Highway...
2019.7.30 Demurrer, Motion to Strike 273
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2019.7.30
Excerpt: ...rer to the seventh cause of action without leave to amend. To grant the motion to strike specifications 4‐11, with leave to amend. To strike the first cause of action. To deny the motion to strike the second cause of action and specifications 1‐3. Plaintiff shall file and serve a First Amended Complaint within 15 days of the clerk's service of this minute order. New allegations shall be in bold type font. Explanation: Demurrer: “ ‘We trea...
2019.7.30 Motion to Set Aside Default 192
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.7.30
Excerpt: ...hus, it is somewhat unclear exactly what the legal or factual basis for the motion is. Nevertheless, it appears that defendant is moving for relief from the default under Code of Civil Procedure section 473, subdivision (b), which provides for relief from defaults where the default was entered as a result of mistake, surprise, inadvertence, or excusable neglect. “Where the mistake is excusable and the party seeking relief has been diligent, cou...
2019.7.30 Motion for Leave to File Amended Complaint 348
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.7.30
Excerpt: ... the reply brief, is denied without prejudice. Explanation: Plaintiff Armida Gonzales has filed this motion for leave to file a First Amended Complaint. Plaintiff seeks to add causes of action for vicarious liability for the tortious acts and omissions of an employee and/or independent contractors, violation of a mandatory duty, and dangerous condition of public property against Defendants City of Fresno and Fresno Housing Authority (FHA). The FA...
2019.7.30 Motion to Compel Responses 487
Location: Fresno
Judge: Simpson, A.M.
Hearing Date: 2019.7.30
Excerpt: ...esponding party permits. If an interrogatory cannot be answered completely, it shall be answered to the extent possible. If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propoundi...
2019.7.25 Motion to Compel Production of Docs 201
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.7.25
Excerpt: ...e statement, then plaintiffs' separate statement shall be filed by August 8, 2019, and opposing parties' responsive separate statement shall be filed by August 21, 2019. Explanation: Plaintiffs move to compel nonparty County of Fresno Public Defender to produce documents responsive to seven requests for production of documents contained in a deposition subpoena. However, plaintiffs have not filed the required separate statement, which the court b...
2019.7.9 Motion for Preliminary Approval of Amended Class Action Settlement 372
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.7.9
Excerpt: ...ties 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; see also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) § 7:3 [“The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether cert...
2019.7.9 Motion to Strike Punitive Damages 078
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.7.9
Excerpt: ...typeset. Explanation: Defendant Eskander Yousseff Eskander has moved to strike the requests for punitive damages from the complaint filed by Plaintiffs Brandon Griffith and Dareen Malaythong, a married couple. Plaintiffs have filed claims for negligence per se/general negligence and loss of consortium stemming from an alleged hit‐and‐run accident. Defendant contends that punitive damages are not available for a claim for negligence and that t...
2019.7.3 Motion to Tax Costs, for Attorney's Fees 471
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.7.3
Excerpt: ...the record, and $2,457.85 for the transcript of the arbitration hearing. The appeals court decision awarded Castaneda his costs on the appeal. The right to recover costs on appeal is governed by Cal. Rules of Court, rule 8.278, which sets forth the recoverable costs on appeal, if reasonable: (1) A party may recover only the following costs, if reasonable: (A) Filing fees; (B) The amount the party paid for any portion of the record, whether an ori...
2019.7.3 Motion to Enforce Settlement and for Sanctions 883
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.7.3
Excerpt: ...ttorney's fees in the amount of $1,260 and costs in the amount of $60. To deny the request for sanctions pursuant to Code of Civil Procedure section 128.7. Explanation: Code of Civil Procedure Section 664.6 provides as follows: “If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court . . . for settlement of the case . . . the court, upon motion, may enter judgment pursuant to the terms...
2019.7.3 Motion for Summary Judgment, Adjudication 756
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2019.7.3
Excerpt: ...Celestino Perales's cross‐complaint. (Code Civ. Proc. §473c(c); Cal. Rules of Court, rule 3.1350(b).) Explanation: Summary adjudication As an initial matter, the Court will not summarily adjudicate any issues or causes of action, as the moving papers fail to comply with California Rules of Court, rule 3.1350(b). Notice of motion Defendants argue that service on counsel on April 19, 2019, made by handserving copies of the moving papers after th...
2019.7.3 Motion for Leave to File Amended Complaint 910
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.7.3
Excerpt: ...o file a First Amended Complaint. The proposed First Amended Complaint contains some additions and deletions of general allegations, as well as a Fifth Cause of Action for Breach of Contract. The allegations of the proposed Fifth Cause of Action appear to concern allegations in Defendant's Cross‐Complaint. Plaintiff has filed a supporting declaration by counsel detailing that the facts supporting the Fifth Cause of Action were only revealed dur...
2019.7.3 Motion for Class Certification and Preliminary Approval of Class Settlement 653
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.7.3
Excerpt: ...ive class actions are provisionally designated complex upon filing. California Rules of Court, Rule 3.400(c)(6). Subpart (b) of that rule states “In deciding whether an action is a complex case under (a), the court must consider, among other things, whether the action is likely to involve: (1) Numerous pretrial motions raising difficult or novel legal issues that will be time‐consuming to resolve; (2) Management of a large number of witnesses...

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