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2019.4.23 Motion to Dismiss or Transfer 040
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.4.23
Excerpt: ... the ground of inconvenient forum. (Code Civ. Proc. § 418.10(a)(2).) It is not disputed that all of plaintiff's claims against Jeffrey Hacker arise from and are based on the stipulated Judgment for Dissolution of Marriage entered in case no. 16CEFL00096. The Judgment for Dissolution specifically reserved jurisdiction in the Family Court action for any enforcement of the Judgment and to resolve any matter subject to the jurisdiction of the court....
2019.4.23 Demurrer, Motion to Strike 994
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.4.23
Excerpt: ...no moving papers were filed. 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. Explanation: Defendant Syngenta Seeds, LLC demurs to the following causes of action: (1) negligence (production and delivery of defective seed); (2) negligence (sale of old seed); (3) negligent misrepresentation; and (4) intentional misrepresenta...
2019.4.18 OSC Re Petition to Compel Further Discovery Responses 695
Location: Fresno
Judge: Black, Donald
Hearing Date: 2019.4.18
Excerpt: ...oyment and Housing Act (FEHA)].” (§ 12930, subd. (f)(1).) Upon receiving a complaint of discrimination, the DFEH is directed to promptly investigate the complaint. (§ 12963.) In pursuit of its investigation, the DFEH has the power, among other things, to issue subpoenas for the production of documents and to issue written interrogatories. (§ 12930, subd. (g)(1) & (3).) As a part of its investigation of Chandler's complaint pursuant to Sectio...
2019.4.18 Motion to Strike, Request for Admissions and for Related Sanctions 188
Location: Fresno
Judge: Black, Donald
Hearing Date: 2019.4.18
Excerpt: ...w Office of John Cadwalader within 30 days after service of this order. Explanation: Motion to Strike Code of Civil Procedure section 436 provides, “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted into any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the ...
2019.4.18 Motion for Protective Order, to Compel Depositions 201
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.4.18
Excerpt: ...and place in the next 30 days. Explanation: In this action plaintiffs allege that the Fresno County Public Defender's Office suffers from structural deficiencies that prevent it from providing indigent defendants with meaningful and effective assistance of counsel in violation of the federal and California constitutional guarantees of due process and right to counsel, and the constitutional and statutory rights to a speedy trial. Plaintiffs alleg...
2019.4.18 Motion for Leave to File Amended Complaint 184
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.4.18
Excerpt: ...y set for May 9, 2019, are off calendar as moot in light of this ruling. 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...
2019.4.18 Demurrer, Motion to Strike 708
Location: Fresno
Judge: Black, Donald
Hearing Date: 2019.4.18
Excerpt: ...based upon Code of Civil Procedure section 430.10, subdivisions (e). Defendants argue that: (1) plaintiff has failed to comply with the Government Claims Act; (2) defendants are immune; and (3) plaintiff fails to state a cause of action. Each of these arguments is addressed below. Government Claims Act If a complaint against a public entity does not allege facts showing that a claim was timely made under the Government Claims Act, or that complia...
2019.4.18 Demurrer, Motion to Strike 307
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.4.18
Excerpt: ...he motion to strike without leave to amend. Defendants are to submit a proposed order dismissing the Plaintiff's first amended complaint as to them with prejudice within ten (10) days of the date of service of this order. Explanation: Defendants James Davis, M.D. and the Regents of the University of California (“Moving Defendants”) have filed a demurrer and a motion to strike the first amended complaint filed by Plaintiff Verrees. The argumen...
2019.4.18 Demurrer 788
Location: Fresno
Judge: Black, Donald
Hearing Date: 2019.4.18
Excerpt: ...of the minute order. New allegations/language must be set in boldface type. Explanation: First Cause of Action – Dangerous Condition of Public Property To state a cause of action under this statute, plaintiff must allege: 1) a dangerous condition existed on the public property at the time of the injury; 2) the dangerous condition proximately caused the injury; (3) the dangerous condition created a reasonably foreseeable risk of the kind of inju...
2019.4.17 Petitions to Confirm Arbitration Award, to Vacate or Correct Arbitration Award 030
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.4.17
Excerpt: ...cy favoring arbitration is so strong that "any doubt on the issue must be resolved in favor of arbitration." (Buckhorn v. St. Jude Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406; See also AT & T Technologies, Inc. v. Communications Workers of America (1986) 475 U.S. 643, 650 [any doubt as to whether a particular dispute falls within ambit of arbitration clause resolved in favor of arbitration]; See also, United Transp. Union, AF...
2019.4.17 Motion for Class Certification and Preliminary Approval of Class Settlement 334
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.4.17
Excerpt: ...d preliminary approval lists the Turley and Mara Firm. The settlement attached to the most recent Mara declaration lists the Turley and Mara firm as class counsel. But the Notice to Class lists the Mara Firm. The most recent declarations are filed with the Mara Law Firm listed as counsel, at a new address. The Court takes judicial notice on its own motion of the February 6, 2019 filing by the Turley Firm on Trade Street in San Diego listing Willi...
2019.4.16 Motion to Set Aside Default 158
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.4.16
Excerpt: ...iv. Proc., § 473, subd. (b).) Here, defendant Hanna Design Group, Inc., seeks to set‐aside its default which was entered on January 7, 2019. In support thereof, it makes three arguments: (1) plaintiffs' complaint is improperly drafted; (2) plaintiffs failed to notify defendant of their intent to seek default before doing so; and (3) attorney fault. The first two arguments are unpersuasive. First, defendant argues that default must be set aside...
2019.4.16 Motion to Decertify Class 163
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.4.16
Excerpt: ... fees by May 1, 2019. Explanation: 1. Substitution of Attorney Required for New Firm Until a substitution of attorney is filed, signed by the client, counsel of record and the firm of record remain the same. Code of Civil Procedure sections 284 and 285, People ex rel. Department of Public Works (1967) 248 Cal. App. 2d 618, 623. 2. Merits of Motion The interrogatories formally state they may not contain all information, and that a diligent search ...
2019.4.16 Motion for Summary Judgment 641
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.4.16
Excerpt: ...planation: Burden on Summary Judgment “A plaintiff moving for summary judgment meets its burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling that party to judgment on that cause of action.” (Pasadena Metro Blue Line Const. Authority v. Pacific Bell Telephone Co. (2006) 140 Cal.App.4th 658, 663; see also Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Comp...
2019.4.16 Motion for Attorney's Fees, to Tax Costs 089
Location: Fresno
Judge: Black, Donald
Hearing Date: 2019.4.16
Excerpt: ...6. Explanation: Attorney Fees: Attorneys' fees are allowed as costs when authorized by contract, statute, or law. (Code Civ. Proc. § 1033.5, subd. (a)(1)(B).) Here, plaintiffs achieved their litigation objective in this action under the Song‐Beverly Act by way of accepting defendant's offer pursuant to Code of Civil Procedure section 998 (“998 Offer”), wherein defendant agreed to pay plaintiff $37,387.95. Plaintiff says this amount was inc...
2019.4.11 Motion for Summary Judgment, Adjudication 442
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.4.11
Excerpt: ...den of persuasion thereon (Evid. Code § 500). Thus, “from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that it is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Plaintiffs moving for summary judgment bear the burden of persuasion that each element of the cause of action in question...
2019.4.10 Motion for Default Judgments 619
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.4.10
Excerpt: ...nswered, and, moreover, has asserted affirmative defenses that, if proven, might prove a defense for the claims against Eastgate and Raman. (Cf. Adams Mfg. & Eng. Co. v. Coast Centerless Grinding Co. (1960) 194 Cal.App.2d 649, 655 (if it appears that the defaulting defendant's liability is dependent on the answering defendant being held liable, default judgment is not proper). Here, Volvo has pleaded defenses that the accident was entirely the fa...
2019.4.10 Motion for Terminating Sanctions 617
Location: Fresno
Judge: Black, Donald
Hearing Date: 2019.4.10
Excerpt: ...e provided this information sooner, it is a valid excuse for nonattendance, if substantiated. The minor's father (GAL and co‐plaintiff) was deposed, and it is reasonable to assume he could have, or may have, testified to his son's condition or that he came to the deposition with other proof of it. And yet defendant did not provide any evidence on this subject, such as evidence that Mr. Melendez failed to corroborate Mr. Quigg's contention that ...
2019.4.10 Motion for Default Judgments 619
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.4.10
Excerpt: ...nswered, and, moreover, has asserted affirmative defenses that, if proven, might prove a defense for the claims against Eastgate and Raman. (Cf. Adams Mfg. & Eng. Co. v. Coast Centerless Grinding Co. (1960) 194 Cal.App.2d 649, 655 (if it appears that the defaulting defendant's liability is dependent on the answering defendant being held liable, default judgment is not proper). Here, Volvo has pleaded defenses that the accident was entirely the fa...
2019.3.28 Motion to Strike Punitive Damages 207
Location: Fresno
Judge: Black, Donald
Hearing Date: 2019.3.28
Excerpt: ....3d 159, 164.) With respect to punitive damage allegations, mere legal conclusions of oppression, fraud or malice are insufficient and therefore may be stricken. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6; see also Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1055.) In this context, “fraud” means intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with th...
2019.3.28 Motion for Sanctions 929
Location: Fresno
Judge: Black, Donald
Hearing Date: 2019.3.28
Excerpt: ... to Plaintiff and Cross‐Defendants' ability to raise the challenge to the alleged failure to abide by the pre‐filing requirements of Civil Code section 1714.10 through a more appropriate procedural vehicle. The Court declines to award sanctions. Explanation: Plaintiff and Cross‐Defendants move for sanctions pursuant to Code of Civil Procedure sections 128.5 and 128.7. Code of Civil Procedure section 128.5, subdivision (a), states: A trial c...
2019.3.28 Motion for Summary Judgment 824
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.3.28
Excerpt: ...omplaint of plaintiff Douglas Jackson alleges that on 3/17/15 at Nashville's Bar and Grill (owned and operated by defendant Nashville Investment Group, LLC), defendants Raustyn Hurst, Sharonja Curry, Elizabeth Ferreira, Luke Coghlan, John Hurst, III, and Doreen Duinkerken aka Doreen Hurst (referred to herein as “Doreen”) assaulted and battered plaintiff by striking his face and body. Against the individual defendants plaintiff alleges causes ...
2019.3.28 Motion to Quash Service of Summons and Complaint 192
Location: Fresno
Judge: Black, Donald
Hearing Date: 2019.3.28
Excerpt: ...efendant Kuldip Singh Preet Marok, as defendant was not properly named in the complaint at the time he was served, and thus was not a party to the action. “A person or entity may become a party defendant only in two ways: by being named as a defendant, or by being properly named and served as a fictitiously named defendant pursuant to [Code of Civil Procedure] section 474.” (Kerr‐Mcgee Chemical Corp. v. Superior Court (1984) 160 Cal.App.3d ...
2019.3.27 Application for Interlocutory Judgment 413
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.3.27
Excerpt: ...., there is house on the property and as a result, the property cannot be physically divided. But, there are no facts pleaded regarding attempts to obtain an agreement to sell. More importantly, CCP § 872.510 states: The plaintiff shall join as defendants in the action all persons having or claiming interests of record or actually known to the plaintiff or reasonably apparent from an inspection of the property, in the estate as to which partitio...
2019.3.27 Demurrer 884
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.3.27
Excerpt: ... the demurring defendants. Explanation: The court will address these two actions together. Aside from the addresses and dates, the relevant facts, causes of action, allegations and arguments are the same in each action. Trustee's Privilege Defendants contend that all claims against them are barred by the Trustee's privilege. As in the demurrers to the original complaints, plaintiffs do not respond to this argument. Civil Code § 2924(d) states th...
2019.3.27 Demurrers, Motion for Sanctions, to Quash Service of Summons 602
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.3.27
Excerpt: ...y LLP's general and special demurrer to the entire “Bill in Equity” without leave to amend. (Code Civ. Proc. §430.10(e), (f).) To grant State Farm Mutual Automobile Insurance Company's motion for sanctions. (Code Civ. Proc. §128.7.) Claimant Andrew Arthur Wysotski is ordered to pay monetary sanctions in the amount of $2,000 to Sheppard, Mullin, Richter & Hampton, LLP within 30 days of notice of this order. Claimant has filed and then subseq...
2019.3.27 Motion for Class Certification and Preliminary Approval of Class Settlment 801
Location: Fresno
Judge: Black, Donald
Hearing Date: 2019.3.27
Excerpt: ...f evidence showing that a 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...
2019.3.27 Motion for Summary Judgment, Adjudication 088
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.3.27
Excerpt: ...mages. (Ibid.) Explanation: Motion for Summary Judgment The summary judgment procedure “is drastic and should be used with caution.” (Buehler v. Oregon‐Washington Plywood Corp. (1976) 17 Cal.3d 520, 526.) Accordingly, the affidavits of the moving party are strictly construed, while those of the opposing party are liberally construed. (Huynh v. Ingersoll‐Rand (1993) 16 Cal.App.4th 825, 830.) “[A]ny doubts as to whether summary judgment i...
2019.3.26 Demurrer, Special Motion to Strike 584
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.3.26
Excerpt: ...nation: A special motion to strike provides a procedural remedy to dismiss nonmeritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc. §425.16, subd.(a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The court engages in a two‐step process in determining whether an action is subject to the anti‐SLAPP statute: first, the court deci...
2019.3.26 Motion for Leave to File Amended Complaint 624
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.3.26
Excerpt: ...entatives for such claim, and 3) show manageability for trial of all claims. Plaintiff must file that motion by April 17, 2019. Any opposition is due by May 1, 2019, and a reply may be filed on or before May 10, 2019. Explanation: There is no trial date in this action. The claim under Labor Code section 203 is derivative of and dependent on the success of the already‐pled certified claims. The fact that class members have separated from their e...
2019.3.26 Motion for Summary Judgment, Adjudication 247
Location: Fresno
Judge: Black, Donald
Hearing Date: 2019.3.26
Excerpt: ...n as to the Sixth Affirmative Defense. Defendant is directed to submit to this court, within 5 days of service of the minute order, a proposed judgment consistent with this order. Explanation: The court disregards defendant's “Objections” to plaintiff's amended Separate Statement filed on March 19, 2019, which amounts to a “reply separate statement,” which the summary judgment statute does not provide for or allow. (Nazir v. United Airlin...
2019.3.26 Motion to Vacate and Set Aside Default, Judgment 273
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.3.26
Excerpt: ...he Summons and Complaint. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 414 [“[N]o California appellate court has gone so far as to uphold a service of process solely on the ground the defendant received actual notice when there has been a complete failure to comply with the statutory requirements for service.”].) On the other hand, it is also true that if the evidence supports a finding that defendants were properly served, then their a...
2019.3.26 Demurrer, Motion to Strike 200
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.3.26
Excerpt: ...complaint. All new allegations in the amended complaint are to be set in boldface type. Explanation: Demurrer Breach of Fiduciary Duty To adequately allege breach of fiduciary duty, a plaintiff must allege a fiduciary relationship, its breach, and damage proximately caused by that breach. (Knox v. Dean (2012) 205 Cal.App.4th 417, 432.) Where a person was once a limited partner, but then sells his or her partnership interest, the “mere fact that...
2019.3.7 Demurrer 783
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.3.7
Excerpt: ...mend. (Code Civ. Proc. § 430.10(e).) Defendants are to submit to this court, within seven days of service of the minute order, a proposed judgment dismissing this action as to the demurring defendants. The motion to strike punitive damages allegations are moot in light of the ruling on the demurrer. Explanation: Initially the court notes that it does not appear that the Ciresi defendants have met and conferred in person or by telephone as requir...
2019.3.7 Demurrer 064
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.3.7
Excerpt: ...e the facts appearing on the face of the complaint, it also accepts as true the facts appearing in the attached exhibits, and if the exhibits' facts are contrary to the pleading's allegations, the exhibits will be given precedence. (Moran v. Prime Healthcare Management, Inc. (2016) 3 Cal.App.5th 1131, 1146.) However, plaintiff's interpretation of the contract must be accepted as correct in testing the sufficiency of the complaint. On general demu...
2019.3.7 Motion to Order Posting of Undertaking 346
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2019.3.7
Excerpt: ...rity for costs and attorney's fees; motion; hearing; undertaking states in full: (a) When the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action or special proceeding. For the purpose...
2019.3.7 Motion for Summary Judgment, Adjudication 733
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.3.7
Excerpt: ...37c.) The County is directed to submit to this court, within 5 days of service of the minute order, a proposed judgment consistent with the court's summary judgment order. Explanation: Defendants Interstate and Meza have filed a cross‐complaint against the County based on the theory that the County is liable for plaintiffs' injuries due to the existence of an allegedly dangerous condition on the property where the accident occurred, which was t...
2019.3.7 Motion for Summary Judgment, Adjudication 720
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.3.7
Excerpt: ...h the court's summary judgment order. Explanation: A defendant moving for summary judgment or adjudication has the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant meets that burden by showing that one or more elements of the cause(s) of action cannot be established, or that there is a complete defense there...
2019.3.7 Motion for Summary Judgment 860
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2019.3.7
Excerpt: ...plaint on the ground that plaintiff's exclusive remedy against them is through the payment of workers' compensation benefits, and therefore he cannot prevail on his sole cause of action for motor vehicle negligence. However, defendants have not met their burden of producing evidence showing that they are entitled to the protection of the workers' compensation exclusive remedy rule. First, to the extent that defendant De La Cruz argues that plaint...
2019.3.7 Motion for Summary Judgment 045
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2019.3.7
Excerpt: ...ruling on a motion for summary judgment or summary adjudication, the court must “consider all of the evidence' and all of the 'inferences' reasonably 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, courts usually follow a three‐prong analysis: identifying the issu...
2019.3.7 Motion for Reconsideration 590
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2019.3.7
Excerpt: ...ber 26, 2018. The papers must, at the very least, demonstrate a valid excuse for failing to respond to the Pretrial Discovery Conference Order for purposes of the Code of Civil Procedure §473. Plaintiff may seek any other appropriate relief as well. The Court may be inclined to attach conditions to the relief sought, including the payment of court and/or attorney's fees incurred during this process. The stay on enforcement of the November 26, 20...
2019.3.7 Applications for Writs of Possession and Writs of Attachment 503
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.3.7
Excerpt: ...s of Possession: Plaintiff has met all of the requirements for issuance of the writs of possession under Code of Civil Procedure section 512.010. Plaintiff's claim is based on two written loan agreements and the associated guaranties executed by defendants. The claim appears to be probably valid, as plaintiff loaned defendants money pursuant to the written contracts, defendants promised to repay the loans, and defendants have allegedly failed to ...
2019.3.6 Petition to Compel Binding Arbitration 415
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2019.3.6
Excerpt: ...sident's [Greg Bray's] consent, instruction and/or durable power of attorney,” and she stated, “I hereby certify that I am authorized to act as Resident's agent in executing and delivering of this Arbitration Agreement.” Defendant argues that it relied on Sarah's statement of her authority to sign as Greg's agent. However, defendant bore the burden of establishing a valid agreement to arbitrate. (Pagarigan v. Libby Care Center, Inc. (2002) ...
2019.3.6 Motion to Appoint Special Master 764
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.3.6
Excerpt: ... court … determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.” (Code Civ. Proc. § 639, subd. (a)(5).) On the other hand, Rule of Court 3.920, subdivision (c) provides that a discovery referee may not be appointed under Code of Civil Procedure section 639, subdivision (a)(...
2019.3.6 Motion for Summary Adjudication 234
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.3.6
Excerpt: ... a single cause of action for retaliation in violation of Government Code section 12940, subdivision (h). As a condition of plaintiff being granted leave to file a Second Amended Complaint alleging two new causes of action, this motion is being treated as one for summary adjudication of the retaliation cause of action. Plaintiff objects to the motion on the ground that the moving papers were not timely served. The proof of service of the motion s...
2019.3.6 Motion for Class Certification and Preliminary Approval of Class Settlement 103
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.3.6
Excerpt: ...tion 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”): “Confronted wit...
2019.3.6 Demurrer 803
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.3.6
Excerpt: ...order by the clerk, to file and serve a first amended complaint. All new allegations in the amended complaint are to be set in boldface type. Explanation: Demurrer In testing a pleading against a demurrer, the facts alleged are deemed to be true, as it is “not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which [plaintiff] describes the defendant's conduct. A demurrer tests onl...
2019.3.5 Motion to Quash Subpoena Duces Tecum, Request for Monetary Sanctions 965
Location: Fresno
Judge: Hamilton, Jeff
Hearing Date: 2019.3.5
Excerpt: ...hearing is required and plaintiff does not prevail, for plaintiff's bad faith opposition and his refusal to withdraw or modify his subpoena. (Code Civ. Proc. § 1987.2.) Plaintiff shall pay monetary sanctions to defendants within 30 days of the date of service of this order. Explanation: “If a subpoena requires … the production of books, documents, electronically stored information, or other things before a court, … the court, upon motion r...
2019.3.5 Motion to Compel Deposition 923
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: 2019.3.5
Excerpt: ... Civ. Proc. §2025.450(g)(1).) Plaintiffs to pay sanctions to the Betts & Rubin law firm, within 30 days of the clerk's mailing of the minute order. Explanation: “The Civil Discovery Act provides litigants with the right to broad discovery. In general, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that actio...
2019.3.5 Motion to Vacate Default, for Leave to Defend Action 177
Location: Fresno
Judge: Gaab, Kimberly
Hearing Date: 2019.3.5
Excerpt: ..., upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order. (Id., emphasis added.) Defendant argues that the “default is void” because the summons served on him named the person served as “Lawrence K. Logan.” Neither the comp...

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