Excerpt: ... to stay e nforcement of the money judgment against them individually together with their employer the County of Fresno. “Unless an undertaking is given, the perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgm ent or order is for any of the following: [¶] (a) Money or the payment of money … .” (Code Civ. Proc. § 917.1, subd. (a).) Code of Civil Procedure section 995.220, states in re...

Excerpt: ...t 17, 2023, the court sustains the objections to Exhibit A and the reference to the same in paragraph 6. The court overrules the objection to paragraph 5. Regarding the Declaration of Martin Martin filed February 7, 2024, the court overrules the objections to p aragraphs 3 and 7, but sustains the objections to paragraphs 4 -6 and Exhibit A. Arbitration Agreement Under the Federal Arbitration Act (“FAA”), A written provision in … a contract...

Excerpt: ...March 20, 2024, at 3:30 p.m. Explanation: Defendant Jeffrey Doc Baker (“Defendant”) moves to strike paragraph 74, of the fourth cause of action as a survival action, and the prayer for punitive damages of the Consolidate First Amended Complaint (“CFAC”).1 Defend ant contends that the CFAC fails to state sufficient facts to support the claim for punitive damages as to him. Pleadings are to be construed liberally with a view to substantial ...

Excerpt: ... this o rder, with the time to run from the service of this minute order by the clerk. The matters specified in plaintiff's Requests for Admission, Set One, propounded on defendant Jose Lopez dba Jose's Lawns (“defendant”) are deemed admitted, unless defendant se rves, before the hearing, proposed responses to the requests for admission that are in substantial compliance with the Code of Civil Procedure, section 2033.220. Defendant shall ser...

Excerpt: ...Custom Chopping, LLC for an Order Deeming Admissions by Plaintiff Telmo Coelho to Request for Admissions, Set One, and Request for Sanctions (3) By Defendant Kyle Brock for an Order Compelling Initial Responses from Plaintiff Telmo Coelho to Form Interrogatories – General, Set One, Form Interrogatories – Employment, Set One, Special Interrogatories, Set One, and Request for Production of Documents, Set One, and Request for Sanctions (4) By De...

Excerpt: ...ng (“DEFH”) issued a right to sue notice on July 6, 2021, which required plaintiff to commence a court action within one year from that date. Plaintiff has provided competing evidence, however, demonstrating that DFEH issued a right to sue notice on July 8, 2022 whic h addressed previous as well as newly alleged incidents. Measured from the July 8, 2022 right to sue notice, plaintiff's complaint is timely. Yet, Neil Jones' reply brief does no...

Excerpt: ... argument will be entertained on Wednesday, March 20, 2024, at 3:30 p.m. Explanation: Plaintiff, a student dismissed from the California Health Sciences University College of Osteopathic Medicine (“CHSU”), alleges a single cause of action for violation of Education Code section 94367, subdivision (a), which provides, No private postsecondary educational institution shall make or enforce a rule subjecting a student to disciplinary sanctions so...

Excerpt: ...nty Superior Co urt. Horizon Nut, LLC, Horizon Growers Cooperative, Inc., and Joel Perkins filed a demurrer challenging the first cause of action for equitable indemnity on the grounds that it seeks equitable indemnity for an alleged third- party breach of contract and violates public policy. The court agrees with the latter ground and intends to sustain the demurrer. In the first cause of action for equitable indemnity, Nutrien alleges that H...

Excerpt: ...McMillin”). On filing the complaint, a plaintiff may apply for a writ of possession under the claim and delivery statutes. (Code Civ. Proc. § 511.010 et seq.) The plaintiff must file a written application, executed under oath and must include: (1) a showing of the basis of the plaintiff's claim, that plaintiff is entitled to possession of the claimed property, and where the claim is based on a written instrument, a copy of that instrument mu...

Excerpt: ...ts shall submit a proposed judgment consistent with the court's ruling within ten (10) days from the date of this order. 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, subd. (c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) The moving party bears the initial burden of product...

Excerpt: ...ff in this case, Jose Rios Garcia, alleges a single cause of action against the County of Fresno (the "County") for premises liability arising from an accident that occurred when he bumped into a glass window and cut his eye after previously undergoing eye s urgery. Grounds for Demurrer The County demurs generally on the ground that the plaintiff fails to state a cause of action because: (1) under Government Code section 945.6, he failed ...

Excerpt: ...nt (the "FAC") that he purchased a 2018 Chevrolet Silverado (the "Vehicle") on April 5, 2019. The plaintiff alleges the defendant, General Motors LLC, ("GM") had exclusive knowledge that the Vehicle had a "Transmission Defect," based on multiple sources of information , including internal reports, customer complaints made directly to GM, and technical service bulletins. This information was not available to the pub...

Excerpt: ...ivers Alliance (NCRA), et al.'s, motion for attorney's fees, in the amount of $84,837.98. To grant defendants California Water Impact Network (CWIN), et al.'s, motion for attorney's fees, in the amount of $8,985.00. To grant defendants County of San Jo aquin and County of Trinity's motion for attorney's fees, in the amount of $87,465.00. Explanation: All three sets of defendants have moved for supplemental attorney's fees under Code of Civil Proc...

Excerpt: ...n an action under the Song–Beverly Act “shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reas onably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code, § 1794, subd. (d).) The statute “requires the trial court to mak...

Excerpt: ...: Judgment on the Pleadings 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. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4 th 995, 999.) As in demurrers, grounds for the motion must appear on the face of the challenged pleading or on facts which the court may judicially notice. (Saltarelli & Steponovich v. Doug...

Excerpt: ... Offi ce. Defendants' counsel is to prepare proposed orders for the court to include this information, which shall be provided by plaintiff's counsel. To grant defendants attorney's fees in the sum of $2,063.75. (Code Civ. Proc., § 405.30.) Plaintiff shall pay the attorney's fees to defendants' attorney within 30 days of service of the order by the clerk. Explanation: A lis pendens may be expunged on the grounds of 1) a void and invalid lis pend...

Excerpt: ...ays of service of the order by the clerk. 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, subd. (a)(1).) The court's discretion will usually be exercised liberal ly to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) Here, however, the motion fails to comply with the Rules of Court, and se...

Excerpt: ...ttorney F ee Split Agreement. To approve the requested settlement administration fees of $4,250 to Phoenix Class Action Admiration. Explanation: Because an aggrieved employee's action under the [PAGA] functions as a substitute for an action brought by the governm ent itself, a judgment in that action binds all those, including nonparty aggrieved employees, who would be bound by a judgment in an action brought by the government. The act author...

Excerpt: ...te, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” “If the court determines that the parties entered i...

Excerpt: ...aid progra m, administered by the Department of Health Care Services (DHCS or Department). (42 U.S.C., § 1396a.) When a Medi -Cal beneficiary is injured and medical expenses are paid on their behalf, DHCS may assert a lien on a personal injury settlement. However, w here the Medi -Cal beneficiary's injury case settles for less than the full amount of damages, any Medi -Cal lien must be reduced based on a reasonable apportionment of the amount ...

Excerpt: ...aid on thei r behalf, DHCS may assert a lien on a personal injury settlement. However, where the Medi -Cal beneficiary's injury case settles for less than the full amount of damages, any Medi -Cal lien must be reduced based on a reasonable apportionment of the amount o f Medi-Cal benefits provided in comparison to the full amount of the beneficiary's damages. DHCS may only recover “that portion of a settlement that represents payments for me...

Excerpt: ...process of the court' constitutes contempt. (Code Civ. Proc., § 1209, subd. (a)(5).)” (Conn v. Superior Court (1987) 196 Cal.App.3d 774, 784.) “The substantive issues involved in a contempt proceeding are (1) the rendition of a valid order, (2) actual knowledge of the order, (3) ability to comply, and (4) willful disobedience. [Citation.]” (Ibid.) The contemnor must also be served with the Order to Show Cause (“OSC”) for Contempt in th...

Excerpt: ...f the second amended complaint with leave to amend. The plaintiff is granted leave of 10 days to file his first amended complaint, which will run from service by the clerk of the minute order. New language must be set in boldface type. Explanation: The plaintiff, Joshua Spengeman, filed his complaint in this action on September 6, 2022, to recover for harassment, discrimination, retaliation, and assault he experienced on his job as an employee...

Excerpt: ...er second amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: “ ‘Code of Civil Procedure section 473, which gives the courts power to permit amendments in furtherance of justice, has r eceived 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 de...

Excerpt: ... d that there is no need to suspend or revise the Orders entered on December 20, 2023. Explanation: The Notice of Attorney's Charging Lien was overlooked by the court when it initially reviewed the three Petitions, and by the time petitioners' attorne y filed a late Response on December 18, 2023, the court's Tentative Ruling had already been posted on the Tentative Ruling document that was published on December 19, 2023. So this was also overloo...

Excerpt: ...ant Est ate of Mine, LLC's responses to Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production of Documents, Set One. To deny plaintiff's motion to deem requests for admissions admitted. (St. Mary v. Superior Court (2014) 223 C al.App.4th 762, 776.) To impose monetary sanctions in favor of plaintiff and against defendant Estate of Mine, LLC. (Code Civ. Proc. §§ 2023.010, subd. (d), 2030.290, subd. (c), 2031....

Excerpt: ...reed to arbitrate.” (Garlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1505) “Thus, in ruling on a motion to compel arbitration, the court must first determine whether the parties actually agreed to arbitrate the dispute.” (Mendez v. Mid -Wilshire H ealth Care Center (2013) 220 Cal.App.4th 534, 541.) Defendant American Honda Motor Co., Inc. (“Honda”) moves to compel arbitration of plaintiffs' action pursuant to an arbitration cla...

Excerpt: ... interest in real property affected by a lis pendens, can move to expunge the lis pendens at any time after the notice of pendency of action has been recorded. (Code Civ. Proc. § 405.30.) “In proceedings under this chapter, the court shal l order the notice expunged if the court finds that the pleading on which the notice is based does not contain a real property claim.” (Code Civ. Proc., § 405.31.) In addition, “the court shall order th...

Excerpt: ...�� a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, … shall be valid, irrevocable, and enf orceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (9 U.S.C. § 2.) “In recognition of Congress' principal purpose of ensuring that private arbitr...

Excerpt: ...gations shall be in boldface. Explanation: Defendant General Motors, LLC (“Defendant”) moves to strike the prayer for punitive damages from the Second Amended Complaint (“SAC”).1 Defendant argues that punitive damages are not authorized under the Song -Beverly Consumer Warranty Act, and unsupported by the allegations to satisfy Civil Code section 3294. Plaintiffs Ismael Sanchez and Esperanza Rios Velarde (collectively “Plaintiffs”) ag...

Excerpt: ... -day lea ve to amend period. The time in which the answer can be amended will run from service by the clerk of the minute order. Explanation: Defendant MB, a limited liability company, filed its Answer to the Complaint on December 12, 2022. The answer was si gned by legal counsel at that time, but on December 20, 2022 MB filed a substitution of attorney, relieving its former attorney as counsel and substituting itself as legal representative. ...

Excerpt: ...to enter a corrected judgment because the original judgment incorrectly states that defendant Charmla Capanaro has a 3.5% interest in the property, when in fact she has a 4% interest. Also, Charmla has now passed away, so the judgment needs to be corrected to substitute her testate and intestate successors as the property owners in her place. The court does have the power to correct clerical errors in its judgment. (In re Goldberg's Estate (1938)...

Excerpt: ...oes not dispute that there exists an agreement to arbitrate, and that its cross- claims fall within the scope of the agreement. (Clark Decl., Exh. 1, ¶ 23.) In fact, the cross- claims were previously asserted by Joesclub in arbitration before LMI filed the C omplaint in this unlimited civil action. The arbitration proceeding was closed for lack of payment of on the retainer fee by Joesclub. (Clark Decl., Exh. 4.) Accordingly, the basic criteria...

Excerpt: ... acti on and the prayer for attorney's fees. (Code Civ. Proc. § 430.10, subd. (e).) To sustain the general demurrer to the sixth and seventh causes of action. (Code Civ. Proc. § 430.10, subd. (e).) Plaintiff is granted 10 days' leave to file the Second Amended Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. To deny the motion to strike. To grant defendant's request...

Excerpt: ...o the Second Amended Complaint. The time in which the answers can be filed will run from service by the clerk of the minute order. To sustain the demurrers by both defendants as to the second cause of action, without leave to amend. Defendants are directed to submit to this court, within 7 days of service of the minute order, a proposed judgment dismissing the second cause of action as to both defendants. To grant the motion to strike the prayer...

Excerpt: ...n: Defendant demurs to the third cause of action for fraud on the ground that plaintiff fails to state facts sufficient to state a cause of action. Stating a Fraud Cause of Action “ ‘The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable ...

Excerpt: ... defendant is likely to suffer if the preliminary injunction were issued.” (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69 -70; see also Code Civ. Proc., § 526, subd. (d)(2) [Injunctive relief appropriate “[w]hen it appears by the complaint or aff idavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action.”].) The Code of Civil Procedure...

Excerpt: ...0 , subd. (e).) The time in which the complaint may be amended will run from service of the order by the clerk. All new allegations are to be placed in boldface type. To deny the motion to strike punitive damages allegations. (Code Civ. Proc., § 436.) Ex planation: Defendants demur to the third through ninth causes of action, and move to strike the punitive damages allegations from the First Amended Complaint (“FAC”). Demurrer Claims Against...

Excerpt: ...ause of action. To grant leave to amend as to the ninth and seventeenth causes of action, and to deny leave to amend as to the sixteenth cause of action. To deny defendants' motion to strike portions of the complaint, in its entirety. Pla intiffs shall serve and file their first amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer to Sixth Cause of Action: With re...

Excerpt: ...no's demurrer to the second, third, fifth, and sixth causes of action in the First Amended Complaint, with leave to amend. To overrule defendant City of Fresno's demurrer as to the first and fourth causes of action in the First Amended Complaint. Plaintiff is granted 10 days' leave to file the Second Amended Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanati...

Excerpt: ... which provides, in pertinent part that fees may be awarded to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if : (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement… are such as to make th...

Excerpt: ...es. Any objections included in those response are stricken, as all objections are waived due to the failure to serve timely responses. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a), 2033.280, subd. (a).) To deny the request for monetary san ctions. Explanation: On November 14, 2023, plaintiff served Form Interrogatories, Special Interrogatories, Request for Production of Documents, and Requests for Admission, all Set One, on def...

Excerpt: ...ternative request to consolidate the actions, as a complete consolidation for all purposes, including trial and discovery. The lead case will be number 22CECG01601. Defendant is ordered to file and serve a notice of entry of this ord er in all actions, properly captioned with all case names and numbers. Other than this, all further documents filed in the case shall be filed only in the lead case, and shall include the caption and case number o...

Excerpt: ...il Procedure section 1281.2 states that, “[o]n petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy , the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitra...

Excerpt: ... ob jections within 20 days of the date of service of this order. To impose monetary sanctions in favor of Plaintiff Maria Cordoba, and against Defendant American Honda Motor Co., Inc. (Code Civ. Proc. §§ 2023.010, subd. (e) and (h); 2031.300, subd. (c).) De fendant is ordered to pay $1,060.00 in sanctions to the Knight Law Group, LLP within 30 days of the clerk's service of the minute order. If oral argument is timely requested, such argument ...

Excerpt: ...laintiff, payable within 20 days of the date of this order, with the time to run from the service of this minute order by the clerk. The matters specified in defendant's Requests for Admission, Set One, propounded on plaintiff are deemed admitted, un less plaintiff serves, before the hearing, proposed responses to the requests for admission that re in substantial compliance with the Code of Civil Procedure, section 2033.220. Plaintiff shall serv...

Excerpt: ... cause of action with leave to amend; and to deny the defendant's motion to strike. The plaintiff is granted leave of 10 days to file her fourth amended complaint, which will run from service by the clerk of the minute order. New language must be set in boldface type. Explanation: Eleven plaintiffs, not including plaintiff Gina Beckman, filed the original complaint in this action on September 7, 2022, against a single named defendant, Saint Agnes...

Excerpt: ...bd. (f).) The motion to strike is rendered moot, in light of the court's ruling granting plaintiff leave to amend the First Amended Complaint. Plaintiff is granted 20 days' leave to file a Second Amended Complaint. The time to file such pleading will run from service by the clerk of the minute order. All new allegations in a Second Amended Complaint must be set in boldface type. If oral argument is timely requested, such argument will be entert...

Excerpt: ...nder Labor Code section 2699, “[t]he superior court shall review and approve any settlement of any civil action filed pursuant to [PAGA]. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the cou rt.” (Lab. Code, § 2699, subd. (i)(2).) ‘“‘A representative action under PAGA is not a class action'”', and is instead a ‘type of qui tam action', a standard requiring the trial court to det...

Excerpt: ...ministrator actually charged for its services. Explanation: 1. Class Certification The court has already determined that the proposed class meets the requirements for certification when it granted preliminary approval of the proposed settlement. There have been no objections to the court's decision, and nothing has happened since the preliminary approval order that would cause the court to reconsider its determination. Therefore, the court inte...

Excerpt: ...s shall pay monetary sanctions within 20 days of the date of service of this order. However, the court intends to deny the request to enter an immediate default judgment against defendants, as plaintiff still needs to submit a default jud gment application with evidence to prove up its damages. Explanation: Code of Civil Procedure section 2023.010(g) makes “[d]isobeying a court order to provide discovery” a “misuse of the discovery process,...

Excerpt: ...ngs. (9 U.S.C. S 2.) If oral argument is timely requested, such argument will be entertained on Friday, March 8, 2024, at 1:30 p.m. in Department 501. Explanation: Evidentiary Objections Plaintiff's first evidentiary objection is sustained for the best evidence rule. The second evidentiary objection is overruled. The third evidentiary objection is sustained for lack of personal knowledge. The fourth evidentiary objection is sustained for hearsay....

Excerpt: ...the matters specified in the Requests for Admission, Set Three, are to be deemed admitted unless each defendant serves, before the hearing, proposed responses to the requests for admission that are in substantial compliance with Code of Civil Pro cedure section 2033.220. (Code Civ. Proc., § 2033.280, subd. (c).) To impose monetary sanctions against defendants Harpreet Singh and Nijjar Cargo Solutions, Inc., in the amount of $681.25 as to each d...

Excerpt: ...di scretion to stay a civil proceeding where there is a related criminal proceeding pending. The decision whether to stay civil proceedings in the face of a parallel criminal proceeding should be made 'in light of the particular circumstances and competing interests involved in the case.' [Citation.] This means the decisionmaker should consider 'the extent to which the defendant's fifth amendment rights are implicated.' [Cita...

Excerpt: ...ment will be entertained on Friday, March 8, 2024, at 1:30 p.m. in Department 501. Explanation: In moving to compel arbitration, defendants must prove by a preponderance of evidence the existence of the arbitration agreement and that the dispute is covered b y the agreement. The party opposing the motion must then prove by a preponderance of evidence that a ground for denial of the motion exists (e.g., fraud, unconscionability, etc.). (Rosenthal ...

Excerpt: ...Procedure section 598, the court is given great discretion in regards to the order of issues at trial: The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promot ed thereby, on motion of a party, after notice and hearing, make an order…that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case…. ...

Excerpt: ....00. To appoint CPT Group, Inc. as settlement administrator and approve costs to administer in the amount of $8,000.00. Plaintiffs are directed to submit a new proposed order. Explanation: 1. Introduction Under Labor Code section 2699, “[t]he supe rior court shall review and approve any settlement of any civil action filed pursuant to [PAGA]. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the ...

Excerpt: ... to this court, within seven days of the date of service by the clerk of this order, a proposed judgment dismissing this action as to defendant. The court denies defendant's additional request for monetary sanctions. Explanation: Once a motion to compel discovery is granted, continued failure to comply may support a request for more severe sanctions. Code of Civil Procedure section 2023.010, subdivision (g), makes “[d]isobeying a court order to...

Excerpt: ...e of this order. All new allegations shall be in boldface. Explanation: First Cause of Action: “Establishing that claim [for breach of contract] requires a showing of ‘(1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.'” (D'Arrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800, c...

Excerpt: ...nc. and Modivcare Solutions, LLC (collectively, the “Modivcare Defendants”) demur to the entirety of the complaint on the ground that the complaint fails to state a cause of action, and each cause of action is uncertain and time -barred by the applic able statute of limitations. While plaintiff may and does utilize the Judicial Council form complaint, the usage of the form does not change the statutory requirement that the complaint contain �...

Excerpt: ...ntinue the hearing on the motion to Tuesday, April 30, 2024 at 3:30 p.m. in Department 502, to afford plaintiff one final opportunity to comply with the court's order dated 11/7/2023. Defendant shall file with this court an update on the status of the discov ery nine court days before the continued hearing. Explanation: On 5/5/23 defendant propounded on plaintiff Form Interrogatories, Special Interrogatories and Request for Production of Docume...

Excerpt: ...rmony Communities' motion for its attorney's fees, in the amount of $38,002.50. To grant plaintiffs' motion to strike La Hacienda's Memorandum of Costs, item 10, in the amount of $3,512. To deny plaintiffs' motion to strike the remainder of La Hacienda's Memorandum of Costs. To deny plaintiffs' motion to strike Harmony's Memorandum of Costs, in its entirety. If oral argument is timely requested, such argument will be entertained in Department 501...

Excerpt: ...r by the clerk, defendants shall submit a proposed Judgment dismissing the action. If oral argument is timely requested, such argument will be entertained in Department 403 at 3:30 p.m. on March 7, 2024. Explanation: In the FAC filed on 8/15/23, plaintiff Stacy Hu ber alleges she was falsely accused of misconduct at a termination meeting, terminated, and not given any reason for the termination. Based on these bare allegations, plaintiff alleges...

Excerpt: ...ve costs to administer in the amount of $3,250.00. Plaintiff is directed to submit a new proposed order. Explanation: 1. Introduction Under Labor Code section 2699, “[t]he superior court shall review and approve any settlement of any civil action filed pursuant to [PAGA]. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.” (Lab. Code, § 2699, subd. (i)(2).) ‘“‘A representative ...

Excerpt: ...on Under Labor Code section 2699, “[t]he superior court shall review and approve any settlement of any civil action filed pursuant to [PAGA]. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.” (Lab. Code, § 2699, subd. (i)(2).) The statute does not explain what exactly the trial court should consider when reviewing a proposed PAGA settlement. However, recently the Court of Appeal in...

Excerpt: ...nation: The purpose of consolidation is to enhance trial court efficiency by avoiding unnecessary duplication of evidence and procedures, and to avoid the substantial danger of inconsistent adjudications. (Todd -Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978.) And where the issue is consolidating an unlawful detainer action with a civil action making a claim of ownership of the subject property, the additional issue is o...

Excerpt: ...f Court, rule 3.769, subd. (a).) The approval of the settlement also requires certification of a preliminary settlement class. (Cal. Rules of Court, rule 3.769, subd. (d).) “If the court grants preliminary approval, its order must includ e the time, date, and place of the final approval hearing; the notice to be given to the class; and any other matters deemed necessary for the proper conduct of a settlement hearing. (Cal. Rules of Court, Rul...

Excerpt: ...n for summary adjudication is continued to May 2, 2024, at 3:30 p.m. in Department 403. Defendant shall file and serve its motion for relief from the order deeming it to have admitted the matters in the requests for admission by March 14, 2024. The motion shall be calendared on April 11, 2024. Opposition and reply briefs will be filed and served per code. If oral argument is timely requested, such argument will be entertained in Department 501 ...

Excerpt: ...ted, such argument will be entertained in Department 501 at 3:30 p.m. on February 29, 2024. Explanation: A plaintiff may request a continuance by filing a declaration explaining why further discovery is essential to opposing the motion for s ummary judgment and why additional time is needed. (Code Civ. Proc., § 437c, subd. (h); Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270.) The declaration must show facts that establ...

Excerpt: ...ion: “The ethical obligation to warn opposing counsel of an intent to take a default is now reinforced by a statutory policy that all parties ‘cooperate in bringing the action to trial or other disposition.' Quiet speed and unreasonable deadlines do no t qualify as ‘cooperation' and cannot be accepted by the courts.” (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 137, emphasis added, citations omitted.) In addition, “[t]he law favors judg...

Excerpt: ... v. Woodward -Clyde & Assocs. (1985) 38 Cal.3d 488, 499 (Tech -BIlt)) include “a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, a nd a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial condition...

Excerpt: ...30.10, subd. (e), (f).) To overrule the demurrers to the first and second causes of action. The time in which the complaint may be amended will run from service of the order by the clerk. All new allegations shall be in boldface type. Explanation: This is an elder abuse action brought on behalf of Dorothy Magee (“Decedent”), through her successor -in -interest Lydell Magee. Decedent's children, Lydell Magee and Marcel Smith, also assert a wr...

Excerpt: ...Explanation: Demurrer The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of plaintiff's possible difficulty or inability in proving the allegations of his complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690,...

Excerpt: ...s from the date of service of the order by the clerk, to counsel for defendants Hope Benites Serna and Fernando Serna. Explanation: On September 6, 2023, defendants Hope Benites Serna and Fernando Serna (collectively “Defendants”) filed a Request for Pr etrial Discovery Conference, consistent with Fresno Superior Court Local Rules, Rule 2.1.17 regarding disputes between the parties on discovery. On September 25, 2023, noting that plaintiff A...

Excerpt: ...submitted on reply in the Reply Declaration of Gary Revis. All supplemental briefing will be per Code of Civil Procedure section 1005, subdivision (b), treating March 26, 2024 as the original hearing date. Explanation: Defendant Future Clovis, Inc. d ba Future Ford of Clovis (“Defendant”) moves for an order compelling Plaintiffs SS Pro Flooring & Construction, Inc. and Saul Sanchez Medina (collectively “Plaintiffs”) to arbitration. A tri...

Excerpt: ...ovisi on is deemed severed from the Retail Installment Sale Contract. To stay this action and the remaining claims against defendant PRCO, Inc. and American Contractors Indemnity Company pending the completion of arbitration. Explanation: Plaintiff contracte d to purchase a vehicle from Car Palace, Inc., doing business as Auto Depot, on credit. (Shahnematollah Decl., ¶ 9, Exh. A; Second Amended Complaint, ¶¶ 2, 5.) The dealership then assigned...

Excerpt: ..., to allow time for: (1) ESIS, Inc. to serve all appearing parties to the action with the moving papers and to file a corrected proof of service; and (2) the proposed successor in interest to substitute as a party to this action for the deceased plaint iff. The proposed successor in interest may file an ex parte application and reserve an ex parte hearing date for the substitution. The proposed successor in interest may re -file her opposition...

Excerpt: ... for relief.” However, this misstates the holding of Gribin Von Dyl & Associates, Inc. v. Kovalsky (1986) 185 Cal.App.3d 653. There, the court said a party seeking relief “under a court's equity power must make a stronger showing than is necessary to obtain relief under section 473.” (Id. at p. 660, emphasis added.) It did not find that the showing for a request for relief based on “mistake, inadvertence, or excusable neglect” unde...

Excerpt: ...dure section 473.5 in their arguments. Cross- Complainant JD Properties, Inc. addressed both grounds. Accordingly, the court proceeds on both grounds. Code of Civil Procedure section 473, subdivision (b) provides, in pertinent part: The court may, upon any te rms as may 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, inadvertenc...

Excerpt: ...ment order. If oral argument is timely requested, such argument will be entertained in Department 501 at 3:30 p.m. on February 27, 2024. Explanation: The Material Undisputed Facts The plaintiffs in this action, Stephanie Norgard and Edward Priest, are the parents of Varonica Priest ("Decedent"). On January 31, 2021, Decedent presented to the hospital emergency department for respiratory dyspnea. She was 35 years old with a history of mito...

Excerpt: ... others, for failure to properly maintain the lock on the door through which Mr. Roy gained entry to the building. Cosco now moves for summary judgment, relying solely on the firefighter's rule. Cosco contends that the firefighter's rule applies because Mr. D iaz was working as a law enforcement officer in his office at the time of the attack, “and the injuries arose from an activity that was anticipated or expected in the line of duty.” ...

Excerpt: ...timely. Additionally, a meet and confer declaration is not filed in support of the motion. Plaintiff's request to set a hearing on an order to show cause regarding contempt against LP's counsel, Jeremy Freedman, for filing untimely documents, is denied. Explanation: Evidentiary Objections and Requests for Judicial Notice The court overrules each of defendant Latchkey Pioneers, LLC's (“LP”) objections, as LP failed to comply with California ...

Excerpt: ... Center (“Villagio”) and Manco Abbott, Inc., collectively “Settling Defendants,” have agreed to settle with plaintiffs for a total of $5,000,000.00, with offsets taken for settlements reached with defendants Cirks Construction, Inc. in the amount of $125,000 and Miller Clark Landscape and Nursery in the amount of $130,000. The final amount of the settlement is $4,745,000 with Lazy Dog contributing $949,000.00, Villagio contributing $2,37...

Excerpt: ...to file such pleading will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. To deny plaintiff's motion to strike. If oral argument is timely requested, such argument will be entertained at 3:30 p.m. on Thursday, February 22, 2024, in Department 502. Explanation: Demurrer Code of Civil Procedure section 430.40 provides that a person may demur to an answer within 10 days after service of the...

Excerpt: ...ocedur e 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 w here 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.' [Citat...

Excerpt: ...beer bottles on plaintiff's property. Second, on June 4, 2023, the entrance gate was left open. Third, on January 22, 2024, the entrance gate was closed, but not securely latched. Fourth, and primarily, defendants are driving on the dirt road, and the Behrens improved the roadway by paving and grading (though plaintiff only seeks to have defendants stick to the easement boundaries). An injunction may be granted “[w]hen it appears by the complai...

Excerpt: ...defendants Sergio Franco and Vantage Point Finance, LLC in its entirety. If oral argument is timely requested, such argument will be entertained at 3:30 p.m. on Thursday, February 22, 2024, in Department 502. Explanation: Several parties move for summary judgment of the Second Amended Complaint (“SAC”) by plaintiff Cameron Arballo (“Plaintiff”). The SAC states eight causes of action: (1) breach of contract/specific performance; (2) quiet...

Excerpt: ...f ser vice of the minute order, a proposed judgment consistent with the court's summary judgment order. Explanation: Admiral moves for summary judgment or in the alternative, for summary adjudication as to the first and second causes of action in the Fourth A mended Complaint for breach of contract and breach of implied covenant of good faith and fair dealing. Evidentiary Objections and Requests for Judicial Notice Admiral's evidentiary objectio...

Excerpt: ... the special interrogatories. However, the court will grant sanctions against HTV for its unjustified failure to serve timely responses to the discovery, in the amount of $585. HTV shall pay sanctions to Varo within 30 days of the date of ser vice of this order. HTV's request for sanctions against Varo is denied. Explanation: The court intends to deny Varo's motion to compel initial responses to special interrogatories, as HTV has now served ver...

Excerpt: ...s the date documents were mailed and where they were mailed from, but the section where the documents served should be listed reads “Post office on Alluvial, Fresno CA” and does not state what was served. Assuming that defendant can provide a sa tisfactory proof of service, defendant also has not met the requirements necessary to set aside a default judgment. Code of Civil Procedure section 473, subdivision (b), provides for relief from a jud...

Excerpt: ...Civil Procedure section 425.16, "[a] cause of action against a person arising from any act of that person in furtherance of the person 's rightof petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the ...

Excerpt: ...tion: Defendants timely filed their Memorandum of Costs, and plaintiff timely filed his motion to tax those costs. Defendants are entitled to claim costs as prevailing parties, since a dismissed defendant is deemed the prevailing party. (Code Civ. P roc., § 1032, subd. (a)(4); City of Long Beach v. Stevedoring Services of America (2007) 157 Cal.App.4th 672, 678.) This is so whether the dismissal was voluntary or (as here) involuntary. (Crib Re...

Excerpt: ... any action or proceeding." (Code Civ. Proc., 1032, (subd. (b).) "Prevailing party' includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtans any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant." (Code Civ. Proc., S 1032, subd. (a)(4).) Here, defendant Saint Agnes Medical Center was clearly th...

Excerpt: ...a public entity defendant. Specifically, the allegations on paragraph 93, pages 16:23 – 17:5, paragraph 102, pages 17:24 - 18:5, paragraph 111, pages 18:24 – 19:6, paragraph 120, pages 19:23 – 20:5, paragraph 129, pages 20:23 – 21:4, and Prayer for Relief, paragraphs 3, page 32:10 -11 and 12, page 33:23 are stricken from the First Amended Complaint. The court also intends to deny leave to amend. If oral argument is timely requested, such...

Excerpt: ... a First Amended Complaint. The time in which such pleading may be filed will run from service by the clerk of the minute order. All new allegations in the First Amended Complaint are to be set in boldface type. If oral argument is timely requested, su ch argument will be entertained at 9:00 a.m. on Friday, February 23, 2024, in Department 501. Explanation: A motion to strike can be used to cut out any “irrelevant, false or improper” matters...

Excerpt: ...eek relief under Code of Civil Procedure sections 2023.040, 2023.030, 2023.030, and 2023.050 on the basis that defendant's “responses are evasive and incomplete and the objections are without merit or too general.” (Notice of Motions, at p. 2:1 -2 .) Plaintiff's separate statements, however, shows that defendant responded to most of the subject interrogatories and requests for admissions with straight forward denials and factual replies. In p...

Excerpt: ...r co unsel of record, Brian N. Folland, jointly and severally, payable no later than 20 days from the date of this order, with time to run from the service of this minute order by the clerk. If oral argument is timely requested, such argument will be entertain ed at 9:00 a.m. on Friday, February 23, 2024. Explanation: Code of Civil Procedure section 2023.010, subdivision (g), makes “[d]isobeying a court order to provide discovery” a “misuse...

Excerpt: .... Class Certification a. Standards First, the court must determine whether the proposed class meets the requirements for certification before it can grant preliminary approval of the proposed settlement. An agreement of the parties is not sufficient t o 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....

Excerpt: ...section 3287, subdivisions (a) and (b). Under section 3287, subdivision (a), “[a] person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day...” (Civil Code, § 3287, subd. (a).) “‘The purpose of prejudgment interest is to compensate plaintiff for loss of use of h...

Excerpt: ...3:30 p.m. in Department 502. To impose a monetary sanction against defendants Lithia NC, Inc. and American Credit Acceptance, LLC in the amount of $5,560, payable no later than thirty (30) days from the date of service of this order. Explanation: Code of Civ il Procedure section 1281.98 provides, in pertinent part: In an employment or consumer arbitration that requires, either expressly or through application of state or federal law or the rules ...