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968 Results

Location: Fresno x
Motion to Quash Service of Summons 036
Location: Fresno
Judge: McGuire, Rosie
Hearing Date: Motion
Excerpt: ...laintiff 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...
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 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 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 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...
2020.03.17 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...

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