Excerpt: ...cument included in defendant's request for judicial notice. (Evid. Code, § 452, subd. (d).) Explanation: Defendant moves to set aside his default on the ground of inadvertence, surprise, mistake, and excusable neglect under Code of Civil Procedure, section 473, subdivision (b). The trial court has broad discretion to vacate the judgment and/or the clerk's entry of default that preceded it. However, that discretion can be exercised only if the mo...

Excerpt: ... will be entertained on Tuesday, February 20, 2024, at 3:30 p.m. in Department 403. Tentative Ruling: To grant plainti
¯'s motion to compel testimony from person most knowledgeable for defendant Fresno Surgery Center. To grant plainti
¯'s motion to compel further responses to request for production of documents served with deposition notices. Defendant shall make its persons most knowledgeable available for the next noticed deposition dates, an...

Excerpt: ...ent consistent with the court's summary judgment order. Explanation: The Material Undisputed Facts Plainti
¯s are Robert Solorio, Ana Solorio, Cirenia Lozono and Ian Solorio, a minor, through his guardian ad litem (collectively "Plainti
¯s"). This case arises from a tragic collision (the "Collision") between a train and Plainti
¯s' passenger vehicle (the "Vehicle"), which resulted in "catastrophic and, ultimately, fatal injuries” to Decedent...

Excerpt: ...rules all of plainti
¯'s objections to the Hamilton Declaration, all of plainti
¯'s objections to the Wijnen Declaration, plainti
¯'s one objection to the Le
¯al Declaration, and the objection to paragraph 3 of the Bryan Declaration. The court sustains plainti
¯'s hearsay objection to paragraph 4 of the Bryan Declaration. The court overrules defendant's objections numbers 1, 3, 4, 6, and 7. The court sustains defendant's objections numbers 2...

Excerpt: ...ught before the same judge that made the order; (2) made within 10 days after ser vice upon the party of notice of the entry of the order; (3) based on new or di
¯erent facts, circumstances, or law; and (4) made and decided before entry of judgment. Code of Civil Procedure section1008 is jurisdictional. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499.) A party requesting the court reconsider its prior orders must provide new evidence and...

Excerpt: ...awal is not yet e
¯ective, as counsel have not Þled proof of service of the Order Granting Attorney's Motion to be Relieved as Counsel. According to the order at paragraph 5, the “[attorney] is relieved as counsel of record for client e
¯ective upon the Þling of the proof of service of this signed order upon the client.” No such proof of service has been Þled. Plainti
¯ Þled this is action to recover on a $500,000 Loan Agreement and Pr...

Excerpt: ...ted 30 days' leave to Þle the Þrst amended complaint. The time in which the complaint can be amended will run from service by the clerk of the minute order. New allegations/language in the Þrst amended complaint are to be set in boldface type. To Þnd moot defendant's motion to strike the prayer for punitive damages in light of the ruling sustaining the demurrer to all causes of action. Explanation: In California, a complaint shall contain a s...

Excerpt: ...hich the complaint may be amended will run from service of the order by the clerk. All new allegations shall be in boldface type. Oral argument shall be heard on Wednesday, March 20, 2024 at 3:30 p.m. in Department 503. Explanation: A party may Þle a general demurrer on claims that “[t]he pleading does not state facts su
¯icient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e); Estate of Moss (2012) 204 Cal.App.4th 5...

Excerpt: ...demurrer is to test the su
¯iciency of a plainti
¯'s pleading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether plainti
¯ has succeeded in stating a cause of action; the court does not concern itself with the issue of plainti
¯'s possible di
¯iculty or inability in proving the allegations of the complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) In assessing the su
¯icienc...

Excerpt: ...surprise, mistake or excusable neglect under Code of Civil Procedure section 473, subdivision (b).3 Code of Civil Procedure section 473, subdivision (b) provides, in pertinent part: The court may, upon any terms 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, inadvertence, surprise, or excusable neglect. Application for t...

Excerpt: ... s er v i c e o f th i s o rd e r. A ll n ew all egati o n s s h a ll b e i n b o l d face. E x p l an ati o n : C ross - defendant Mutari demurs to the Þrst cross-claim for breach of contract on the ground that it fails to state a cause of action against it, as Mutari was not a party to the purchase agreement that forms the basis for the cause of action. Mutari points out that the cross-complaint only alleges a purchase agreement to buy the sub...

Excerpt: ...e court does not concern itself with the issue of plainti
¯'s p o s s i b l e d i
¯iculty or inability in proving the allegations of their complaint. (Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 572; Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) The complaint is liberally construed (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517; Code Civ. Proc., § 452), which “means that the reviewing court draws inferences favorable to t...

Excerpt: ...in which the amended pleading must be Þled will run from service of the order by the clerk. Explanation: In this action, FTA seeks declaratory and injunctive relief to the e
¯ect that under the Bylaws of Joint Health Management Board (“JHMB”) an annual election must be held among the Union Directors for the Union-designated Chairperson/Co-Chairperson and their alternates using the weighted voting procedure described in the JHMB Bylaws. The ...

Excerpt: ... Sixth, and Seventh Causes of Action Tentative Ruling: To sustain the demurrers to the entire Third Amended Complaint, with leave to amend. (Code Civ. Proc., § 430.10, subd. (f).) To take judicial notice of each document included in defendants' requests for judicial notice. (Evid. Code, § 452, subds. (c), (d).) Explanation: Defendant Fresno Community Hospital and Medical Center dba Community Regional Medical Center (“CRMC”) generally and sp...

Excerpt: ...posed judgment consistent with this ruling. To direct defendant Volkswagen Group of America, Inc. to remit $500 in Þling fees for the consideration of the summary judgment motion. Explanation: Defendants Volkswagen Group of America, Inc. (“Volkswagen”) and Michael Cadillac, Inc. (“Michael Cadillac”) move for summary judgment of the Complaint Þled by plainti
¯ Hubert Williams (“Plainti
¯”). The Complaint states 5 causes of action: ...

Excerpt: ...y name; when the defendant's true name is discovered, plainti
¯ must amend their pleading accordingly. (Code Civ. Proc. §474.) The court may strike out any irrelevant, false or improper matter inserted in any pleading; or strike out all or any part of any pleading not drawn or Þled in conformity with the laws of this state, a court rule or an order of the court. (Code Civ. Proc. §436(a) and (b).) In the case at bench, Defendants move to strik...

Excerpt: ...nal request and response, the request as amended following meet and confer, and any amended response, in addition to the moving party's statement of the factual and legal reasons for compelling a further response and an opposing response thereto. (Cal. Rules of Court, rule 3.1345, subd. (c).) The Joint Separate Statement shall be Þled at least ten court days before the continued hearing. Explanation: A motion to compel a further response to dema...

Excerpt: ...t in the total amount o $1,875. Monetary sanctions are ordered to be paid within 30 calendar days rom the date o service o the minute order by the clerk. Explanation: On January 3, 2024, this motion was continued when the parties Þled a joint statement indicating that the they had agreed to schedule the deposition or on or beore January 31, 2024. The court has not received an update rom the parties and the matter was not taken o
¯ calend...

Excerpt: ...Sanctions: First, plainti
¯'s motion is defective, since plainti
¯ never Þled or served a notice of motion as required by California Rules of Court, rules 3.1110 and 3.1112. “A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.” (Cal. Rules of Court, rule 3.1110(a). The motion must also identify the party or parties bringing the motion; name the parties to wh...

Excerpt: ...ourt may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. (Code Civ. Proc., § 2031.060, subd. (b).) This motion is brought pursuant to Code of Civil Procedure section 2031.060. Accordingly, the Superior Court of Fresno County, Local Rules, rule 2.1.17 applies. The relevant provision of Local Rule 2.1.17 provides as follows “…no motion...

Excerpt: ...l dollar amounts Þlled in (actual costs awarded as well as enhancement payments), within 5 days of the clerk's service of this order. To set a hearing on December 4, 2024 at 3:30 p.m. in Department 502 as a hearing date for an Amended Judgment pursuant to Code of Civil Procedure section 384. A veriÞed report of payouts of settlement funds and a proposed amended judgment shall be submitted no later than November 18, 2024. Explanation: “Before ...

Excerpt: ...�Defendant”) demurs to the Second Amended Complaint (“SAC”) on the grounds that the second cause of action, for breach arising from a special relationship that it fails to state su
¯icient facts to state a cause of action against Defendant, and that it is uncertain. On a demurrer a court's function is limited to testing the legal su
¯iciency of the complaint. A demurrer is simply not the appropriate procedure for determining the truth of ...

Excerpt: ...ll run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: The function of a demurrer is to test the su
¯iciency of a plainti
¯'s pleading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether plainti
¯ has succeeded in stating a cause of action; the court does not concern itself with the issue of plainti
¯'s p o ss i b l e d i
¯iculty...

Excerpt: ...cument included in plainti
¯s' request for judicial notice. (Evid. Code, § 452, subd. (d).) To grant plainti
¯s' motion for summary judgment against Agricultural Contracting Services Association. Inc., dba American Labor Alliance Workers' Compensation Fund & Trust, dba CompOne USA (“ALA”), and to deny the motion against Omega Community Labor Union, dba Compass Pilot Trust (“Omega”). (Code Civ. Proc., § 437c, subds. (c) and (p)(1).) Pl...

Excerpt: ...in his Þrst amended complaint (the "FAC") that he purchased a 2021 Chevrolet Silverado (the "Vehicle") in November 2021. The plainti
¯ 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 public,...

Excerpt: ...efendants from forcing park residents who resided at the park prior to October 10, 2022, to re-apply for tenancy, and closing the park until the City approves the closure and relocation plan under Government Code section 65863.7. To waive the requirement that plainti
¯s post an undertaking to obtain the injunction. Explanation: “This court has traditionally held that trial courts should evaluate two interrelated factors when deciding whether o...

Excerpt: ...resolved in their favor. (Code Civ. Proc., § 437c, subd. (p)(1); see also Aguilar v. Atlantic RichÞeld Co. (2001) 25 Cal.4th 826, 850 [“First, and generally, 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 he is entitled to judgment as a matter of law.”].) Accordingly, a plainti
¯ moving for summary adjudication on an a
¯irmative...

Excerpt: ...t Gerald Johnson, Sr. (“decedent”) by o
¯icers of the Fresno Police Department. Defendants identiÞed Þve issues in their Notice of Motion as the basis for their motion, as follows: 1. Defendants are entitled to judgment on plainti
¯s' Þrst cause of action for battery because defendants Padilla, Bell, and Palomino's use of force (deadly Þrearm force) was objectively reasonable as a matter of law under the totality of the circumstances. 2...

Excerpt: ... that plainti
¯ failed to allege the existence of a duty. The basis of plainti
¯'s negligence cause of action, as she alleges in the SAC, is as follows: On December 3, 2018, an intoxicated driver (Baeza), insured by FSIC, caused an accident by hitting a third-party (Garza). Garza called FSIC to verify Baeza's insurance and asked if she should call the police. The FSIC representative told Garza she did not need to call the police and that they (...

Excerpt: ...l Arbitration Act, and request to dismiss, or alternatively, stay the action pending arbitration. Pursuant to the Federal Arbitration Act (“FAA”), A written provision in … 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 enforceable, save upon such ...

Excerpt: ...7) 66 Cal.2d 738, 746.) An order staying an action until determination of criminal charges allows plainti
¯ to prepare his or her action “while alleviating [defendant's] di
¯icult choice between defending either the civil or criminal case.” (See Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 690.) The requesting party is generally entitled to a stay in the civil action until disposition of the criminal matter. (See id.) Here, def...

Excerpt: ...nitive damages, and the allegations at Item 14a “(2) punitive damages,” and “(2) in the amount of: $3,000,000.00.” (Code Civ. Proc., §§ 425.13, 425.10.) The striking of the punitive damages allegations is without prejudice to plainti
¯s Þling a motion under Code of Civil Procedure section 425.13, subdivision (a). Explanation: Plainti
¯s' Second, Third, and Fourth Amended Complaints Code of Civil Procedure section 472, subdivision (a)...

Excerpt: ...to the present. To deny plainti
¯'s r e q u e s t f o r m o n e t a r y sanctions against defendants. Explanation: Defendants move to quash plainti
¯'s business records subpoena under Code of Civil Procedure sections 1985.3 and 1987.1, contending that the subpoena is overbroad, burdensome, harassing, seeks conÞdential and private information, and seeks information that is not relevant or likely to lead to the discovery of admissible evidence. ...

Excerpt: ..., Set One, Admitted; 2) to Compel Responses to Form Interrogatories, Set One; 3) to Compel Responses to Special Interrogatories, Set One; and 4) to Compel Responses to Request for Production of Documents, Set One Tentative Ruling: To grant all motions as to plainti
¯ Barandalla. Within 20 days of service of the order by the clerk, plainti
¯ Barandalla shall serve objection-free responses to the items speciÞed in the document Þled by defendant...

Excerpt: ...onses, without objections, to the Þrst set of form interrogatories, special interrogatories, and requests for production of documents. To deem defendant to have admitted the truth of the matters in the requests for admissions, set one. To grant monetary sanctions against defendant R&S in the amount of $890. To deny the request for sanctions against defendant's attorney. Defendant shall pay sanctions within 30 days of the date of service of this ...

Excerpt: ...this motion within 10 days of the clerk's service of the minute order. Explanation: The policy favoring amendment is so strong that denial of leave to amend can rarely be justiÞed: “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action o...

Excerpt: ...damages, with leave to amend. Plainti
¯s may Þle and serve a Second Amended Complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer Defendant General Motors, LLC (“Defendant”) demurs to the fourth cause of action for fraudulent concealment set forth in the First Amended Complaint (“FAC”). On a demurrer a court's function is limited to testing the legal su
¯ici...

Excerpt: ...air Employment and Housing Act provisions relied upon by plainti
¯. To sustain defendant's objections as to the declaration of Shaun Austin. To sustain defendant's objections, except objection #2, to the declaration of Morgan Ruiz. Explanation: This case arises out of an alleged wrongful termination of plainti
¯ after he su
¯ered a brain aneurism requiring emergency surgery and extensive post-surgical rehabilitation. When plainti
¯ contacted ...

Excerpt: ...eave to Þle the Fourth Amended Cross-Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: Cross- Defendant SpotOn Transact, LLC (“SpotOn”) demurs to the third and fourth causes of action in cross complainants' third amended cross-complaint (TACC) on the basis that each fails to state facts su
¯icient to state a cause of action. (Code Civ. Proc. §430.10,...

Excerpt: ... action has no merit if the party has shown that one or more elements of the cause of action … cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc. § 437c, subd. (p)(2).) If the defendant does not meet that burden, the motion must be denied, even if the plainti
¯ has not opposed it adequately or at all. (Villa v. McFerren (1995) 35 Cal.App.4th 733, 742743.) Once the moving defendant has met it...

Excerpt: ...rt also intends to grant the motion to strike plainti
¯s' sixth cause of action, paragraph 205, lines 21 thru 24, which alleges that “Defendants further interfered with Plainti
¯'s m e m b e r s ' contracts by unlawfully and non-consensually terminating the tenancies of all Plainti
¯'s members, including Kim Sands, by serving them with a ‘Five Day Notice to Vacate' on or around April 12, 2023, and by Þling unlawful detainers against sever...

Excerpt: .... Proc., S 436, subd. (b); Code Civ. Proc., S 1021.) Explanation: Untimely Amendment Plaintiff and Cross-Defendant Guardian Angel's Adult Day Health Care, LLC ("Guardian Angel") moves to strike the entirety of Defendant and Cross-complainant's Second Amended Complaint, filed on June 21, 2023, on the ground of untimeliness, or in the alternative, to strike the request for attorneys' fees. When the court sustains a demurrer with leave to amend, ord...

Excerpt: .... Davis as Trustee of the Brent A. Davis 2012 Revocable Trust, Davis & Davis Distributors, Davis Equipment, Inc., Davis & Davis Distributors No. 2, Inc. and VRAD Products, Inc.'s motion for summary judgment of the Third Amended Complaint against them. Defendants shall submit a Judgment consistent with the terms of this ruling within 10 days of service of the order. Explanation: Summary judgment is properly granted when no triable issue exists as ...

Excerpt: ...juries suffered when plaintiff Roland Diaz was attacked in his office at Fresno City Hall Annex by Joseph Roy. Plaintiffs contend that locks and doors within the building did not operate as expected, due to the negligence of defendants, such that Mr. Roy was able to enter plaintiff's office and injure Mr. Diaz. However, the evidence shows that Sierra Lock did not install, service and/or repair any lock involved in the subject incident. (UMF 1-7.)...

Excerpt: ...hired the plaintiff, Mr. Lopez, an experienced licensed roofing contractor, to work on their roof. (Fact Nos. 2, 6; Plaintiffs Fact ["P-Fact"l Nos. 1, 2.) Mr. Lopez brought his own ladder and tools to the premises to perform work on the roof. (Fact No. 7.) Mr. Lopez's typical practice is to place his ladder and test it to make sure it is steady and secure before using it to avoid falls. (Fact No. 8.) Mr. Lopez placed his ladder at the back of the...

Excerpt: ...vere water damage which decedent's house sustained after an integrated water supply part located within an upstairs bathroom faucet failed and caused the home to flood. Unfortunately, decedent had suffered a stroke and was not living in her home at the time in question. Decedent stated that she learned of the claim when the water utility contacted her to advise that her water had been shut off following an unusually large spike in water usage. De...

Excerpt: ...preliminary settlement class. (Cal. Rules of Court, rule 3.769(d).) "If the court grants preliminary approval, its order must include the time, date, and place of the final approval hearing; the notce to be given to the class; and any other matters deemed necessary for the proper conduct of a settlement hearing. (Cal. Rules of Court, rule 3.769(e).) "If the court has certified the action as a class action, notce of the final approval hearing must...

Excerpt: ...r Family Trust of 2004, ("Plaintiff") seeks an award of attorney fees pursuant to Civil Code section 1717 following judgment after trial, which was entered in favor of Plaintiff against defendants Larry Oakander and Patricia Oakander (collectively "Defendants"). The First Amended Complaint stated one remaining cause of action against Defendants, for breach of installment note. Plaintiff now seeks a fee award of $407,553.60. Statutory Grounds unde...

Excerpt: ... leave to file a Petition for Relief to File Late Claim pursuant to Government Code section 946.6. The Petition shall be filed in Fresno Superior Court Case Number 23CECG02328. Explanation: 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 ...

Excerpt: ... order. Explanation: As the moving party, defendant bears the initial burden of proof to show that plaintiffs cannot establish one or more elements of the at-issue cause of action or to show that there is a complete defense. (Code Civ. Proc. CCP S 437c, subd. (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 — ...

Excerpt: ...vil Procedure section 430.41and 435.5; specifically, to meet and confer with plaintiff regarding the issues raised by the demurrer and motion to strike. If the parties cannot agree on the purported deficiencies in the first amended complaint, defendant may calendar another hearing date for the demurrer and must comply with Code of Civil Procedure section 430.41 and 435.5 in doing so. If the parties need more time to meet and confer, they may subm...

Excerpt: ... to as the American rule, which provides that each party to a lawsuit must ordinarily pay his own attorney fees. (Trope v. Katz (1995) 11 Cal.4th 274, 278.) Code of Civil Procedure section 1021 provides: "Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are e...

Excerpt: ... pursuant to the rules and exceptions for psychotherapist-patent communications. (Evid. Code, S 1010 et seq.) Evidence Code section 1012 protects communications between a psychotherapist and a patient, including communications during the scope of treatment and diagnoses made by the therapist. A psychotherapist shall claim the privilege whenever disclosure of such communications is sought. (Evid. Code, S 1015.) The holder of such privilege is the ...

Excerpt: ...ng 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., S 36, subd. "upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no contnuance beyond 120 days from the granting of the motio...

Excerpt: ...) Explanation: "California law like federal law, favors enforcement of valid arbitration agreements." (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) "When presented with a petition to compel arbitration, the initial issue before the court is whether an agreement has been formed." (Diaz v. Sohnen Enterprises (2019) 34 Cal.App.5th 126, 129.) In addition, arbitration is a " 'matter of consent, not coercion,'" an...

Excerpt: ...nses, without objections, to the first set of form interrogatories, special interrogatories, and requests for production of documents. To deem defendant to have admitted the truth of the matters in the requests for admissions, set one. To grant monetary sanctions against defendant Stine in the amount of $890. To deny the request for sanctions against defendant's attorney. Explanation: Plaintiffs have shown that they are entitled to orders compell...

Excerpt: ... proposed judgment dismissing the achon. The trial date set for August 19, 2024, is vacated, as are the related dates for Mandatory Settlement Conference and Trial Readiness. If a timely request for oral argument is made, such argument will be entertained on Wednesday, January 24, 2024, at 3:30 p.m. Explanation: Once a moton to compel a party to comply with a discovery request is granted, continued failure to comply may support a request for more...

Excerpt: ... 3 Cal. 5th 531, 549, citing Labor Code section 2599(1)(2) ["The superior court shall review and approve any settlement of any civil action filed pursuant to this part. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court."]) The trial court is to "evaluate a PAGA settlement to determine whether it is fair, reasonable, and adequate in view of PAGA's purposes to remediate present labor law vio...

Excerpt: ...ility issues. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240; see Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1803, fn. 9, 19.a) The trial court has a "fiduciary responsibility" as the guardian of the absentee class members' rights to decide whether to approve a settlement of a class action. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 95.) A precertification settlement may stipulate that a defined class be conditi...

Excerpt: ...ettlement. Explanation: A prevailing buyer in an action under the Song—Beverly Act "shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connecton with the commencement and prosecution of such action." (Civ. Code, S 1794, subd. (d).) The statute "...

Excerpt: ...ction brought by the government. The act authorizes a representative action only for the purpose of seeking statutory penalties for Labor Code violations (Lab.Code, section 2699, subds. (a), (g)), and an action to recover civil penalties 'is fundamentally a law enforcement action designed to protect the public and not to benefit private parties. Oskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 381.) A PAGA representative act...

Excerpt: ...subd. (e).) Moving parties shall submit to this court, within seven days of service of the minute order, a proposed judgment dismissing the action as to them. Explanation: Plaintiff alleges that she was discriminated against based on her race in her employment with Omni Family Health Organization. She sues Omni and three Omni employees (Joseph Hayes, Aurora Cooper and Gloria Pacleb) for (1) hostile work environment racial harassment; failure to p...

Excerpt: ...gant. To order plaintiff to obtain permission from the presiding judge of the court before filing any new actons in pro per. Explanation: Demurrer: Defendant demurs to the entire complaint on the grounds that of "failure to include any causes of action" and "unintelligibility." However, "failure to include any causes of action" and "unintelligibility" are not statutory grounds for a demurrer. It appears that defendant is arguing that the complain...

Excerpt: ...ayra Corina Gonzalez is directed to submit a new proposed order. To set a status conference for Thursday, July 16, 2024, 3:30 p.m. in Department 503. Explanation: 1. Class Certification The court has already granted the motion for preliminary approval and certification of the class and found that the class is sufficiently numerous and ascertainable to warrant certification for the purpose of approving the settlement. There is no reason for the co...

Excerpt: ...ich notably contains a single titled cause of action for common count — money had and received) fails to state suffcient facts to constitute a cause of action, based upon subdivision (e) of Code of Civil Procedure section 431.10 and is otherwise uncertain, based upon subdivision (f) of Code of Civil Procedure section 431.10. Defense counsel met and conferred with plaintiff in Spanish by telephone before filing the demurrer, per the declaration ...

Excerpt: ...lacks jurisdiction, the claims are barred by the doctrine of res judicata, and defendant's promise was an unenforceable gift. Cause of Action Improperly Labelled To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action or that "he is entitled to some relief." (Amid v. Hawthorne Community Medical Group, Inc. (1989) 212 Cal.App.3d 1383, 1386-1387.) Additionally, the court "treat[sl the demurrer as admitting ...

Excerpt: ...civil achon brought under the Fair Employment and Housing Act, Government Code section 12900 et seq., may be awarded reasonable attorney's fees and costs in the court's discretion. (Govt. Code 512965, subd. (c)(6).) The parties reached a settlement upon plaintiff's acceptance of defendants' Code of Civil Procedure section 998 Offer to Compromise, the terms of which included reasonable attorney's fees and costs awarded by the court. In her motion ...

Excerpt: ...cted to submit a proposed judgment. Explanation: Tax Costs On August 29, 2023, judgment was entered in the consolidated matter in favor of defendant Haight Brown & Bonesteel, LLP ("Defendant") and against plaintiff Hallmark Specialty Insurance Company ("Hallmark") following the granting of a motion for nonsuit. Defendant filed a memorandum of costs for $122,662.55. Hallmark seeks to tax those costs. Specifically, Hallmark objects to certain entri...

Excerpt: ...court issued an order granting Defendant's motion and stayed all proceedings pending final disposition of the United States District Court, Eastern District of California, Case No. 1:22-cv-00729. Plaintiff now seeks reconsideration of that order of stay. Motions for reconsideration fall under the purview of Code of Civil Procedure section 1008, which states in pertinent part: When an application for an order has been made to a judge, or to a cour...

Excerpt: ...proof to show that plaintiff cannot establish one or more elements of their causes of action or to show that there is a complete defense. (Code Civ. Proc„ S 437c, subd. (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 must be shown via specific facts and not mere allegations. (ld.) "California cou...

Excerpt: ... to Enforce Settlement Agreement "Code of Civil Procedure section 664.6 provides a summary procedure to enforce a settlement agreement by entering judgment pursuant to the terms of the settlement.„." (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182, internal citations omitted); see also Fiege v. Cooke (2004) 125 Cal.App.4th 1350, 1353-1355 [assent can be established where the parties were present but did not object to settlement termsl.) Furth...

Excerpt: ...ibed." (Kacha v. Allstate Ins. Co. (2006) 140 Cal.App.4th 1023, 1031.) It is not the court's role to review the merits of the controversy or to determine whether the evidence is sufficient to support the appraisal award. (Ibid.) The petition identifies the California Arbitration Act, (Code Civ. Proc. S 1280, et seq.) as providing authority for the court to compel California FAIR Plan Association to participate in the Insurance Code 52071 appraisa...

Excerpt: ...ory Miyake, DMD ("Defendant") seeks an award of attorney fees pursuant to Civil Code section 1717 following the dismissal of the Complaint by plaintiff Mehdi Jafarinejad, DMD ("Plaintiff"). The Complaint stated five causes of action: (1) breach of written contract; (2) breach of implied covenant of good faith and fair dealing; (3) interference with prospective economic advantage; (4) fraud; and (5) injunction. Trial was set for this matter for Ju...

Excerpt: ...esno Code Enforcement Division and John Giannetta's demurrer to the Third Amended Complaint, without leave to amend. (Code Civ. Proc. S 430.10, subd. (e).) Defendants Fresno County Tax Collector Oscar Garcia, City of Fresno, City of Fresno Code Enforcement Division, and John Giannetta are directed to submit a proposed judgment. Explanation: Defendants Fresno County Tax Collector Oscar Garcia ("Garcia"), and City of Fresno, City of Fresno Code Enf...

Excerpt: ... injunction. The matter is not being heard on an ex parte basis. A preliminary injunction may be granted any time before judgment upon affidavits that show sufficient grounds, and notice to the opposing parties. (Code Civ. Proc. S 527, subd. (a).) Generally, the complaint must set forth a cause of action for injunctive relief to support the issuance of a preliminary injunction. (See Code Civ. Proc. S 526, subd. (a)(1)-(2).) However, a preliminary...

Excerpt: ...ng with his evidence. The evidence and new memorandum must be filed on or before 5:00 p.m. on February 20, 2024. Plaintiff may file a new reply on or before 5:00 p.m. on Thursday, February 29, 2024. Explanation: Defendant opposes the moton by arguing that plaintiff has failed to meet the requirements to allow her to bring a renewed motion under Code of Civil Procedure section 1008, subdivision (b). However, the court does not actually regard this...

Excerpt: ...by their first names, not out of disrespect, but for ease of reference.) Robert Kloppenburg (the decedent) passed away in November 2022. Brent is the trustee of his fathers (the decedent's) trust and Paz is the decedent's widow. Brent has known Paz for over 30 years. The plaintiff owns a home (the residence) in Fresno. Upon the decedent's death, the terms of the trust grant Paz the right to occupy the residence, provided she keeps the residence i...

Excerpt: ...of Documents, Set One Tentative Ruling: To grant the motions to compel verified discovery responses, and for deemed admissions. (Code Civ. Proc., S 2030.290, 2031.300, 2033.280.) Within 10 days, plaintiff Jose Madrigal shall serve objections-free, verified responses Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production of Documents, Set One. The truth of all matters specified in the Request for Admissions, Se...

Excerpt: ...take one full eight-hour day. Explanation: Any party may obtain discovery by means of a physical or mental examination of a party to the action, in any action "in which the mental or physical condition of that party is in controversy in the action. ' (Code Civ. Proc., S 2032.020, subd. (a)(l).) If a party desires to obtain discovery by a physical or mental examination, that party shall obtain leave of court. (Code Civ. Proc., S 2032.310, subd. Th...

Excerpt: ...v. Proc., S 1281.2.) However, there is "no public policy in favor of forcing arbitration of issues the parties have not agreed 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 Health Care Center (2013) 220 Cal.App.4th 534, 541.) The party moving to co...

Excerpt: ...d all aggrieved employees under Labor Code section 2698 et seq. Defendant now seeks an order compelling plaintiff to private arbitration of his individual claims, and dismissal of the class claims. A trial court is required to grant a motion to compel arbitration "if determines that an agreement to arbitrate the controversy exists." (Code Civ. Proc., S 1281.2.) However, there is "no public policy in favor of forcing arbitration of issues the part...

Excerpt: ...t dismissing the action as to the City of Fresno. Explanation: A motion for judgment on the pleadings can be made at any time before or during trial. The motion performs the same function as a general demurrer, and thus attacks defects disclosed on the face of the pleadings or by matters that can be judicially noticed. (Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1058.) The plaintiff, Kimberly Ramirez (Plaintiff), has ha...

Excerpt: ...o constitute a cause of action, with leave to amend. To overrule the City's demurrer to the first and third causes of action. To sustain the City's demurrer to the fourth cause of action for failure to state facts sufficient to constitute a cause of action, with leave to amend. Plaintiff is permitted to file and serve a Third Amended Complaint within ten days of the date of service of this order. All new allegations shall be in boldface. Explanat...

Excerpt: ...ustin Harris only, including the language "and/or Defendant Harris" contained in paragraph 74. Explanation: Objection The court sustains the hearsay objection to paragraph 10 of the Aretakis Declaration. Ant-SLAPP A SLAPP suit (Strategic Litigation Against Public Participation) is a suit brought "primarily to chill the valid exercise of constitutional rights of freedom of speech and petition for redress of grievances." (Code Civ. Proc., S 425.16,...

Excerpt: ...: 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, 597.) In a...

Excerpt: ...t preliminary approval of the proposed settlement. An agreement of the parties 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 (rev. denied); see also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: "The parties' representation of an uncontested moti...

Excerpt: ... Plaintiffs move, pursuant to Code of Civil Procedure, section 437c, subdivision (f)(l), for summary adjudication against all three of defendant's affirmative defenses raised in his answer: (1) self-defense, (2) defense of property, and (3) necessity. Plaintiffs contend that defendant cannot establish any of these affirmative defenses. However, the evidence plaintiffs submit in support of its motion, with the exception of the decedent's cause of ...

Excerpt: ...inute order, a proposed judgment dismissing this action. To grant monetary sanctons against plaintiff and plaintiff's counsel in the amount of $1,359.95. Monetary sanctions are ordered to be paid within 30 calendar days from the date of service of the minute order by the clerk. Explanation: Terminating Sanctions: Once a motion to compel discovery is granted, continued failure to comply may support a request for more severe sanctions. Code of Civi...

Excerpt: ...rant each moton to compel initial responses. Within ten (10) days of service of the order by the clerk, plaintiff Kent Lane shall serve verified responses, without objections, to Form Interrogatories, Set One. To impose monetary sanctions in the total amount of $820.00 against plaintiff Kent Lane, in favor of defendants Abel Cintora and Abel's Towing & Roadside Service, Inc. Within thirty (30) days of service of the order by the clerk, plaintiff ...

Excerpt: ... pay monetary sanctions to defendant within 30 days of the date of service of this order. Explanation: Under Code of Civil Procedure section 2025.450, "If, after service of a deposition notice, a party to the action without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the d...

Excerpt: ...ice of the order. If a timely request for oral argument is made, such argument will be entertained on Thursday, January 11, 2024, at 3:30 p.m. Explanation: Summary judgment is properly granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., S 437c, subd. (c).) In moving for summary judgment, a "defendant has met his or her burden of showing that a cause of act...

Excerpt: ...or about November 5, 2020, Plaintiff, a minor, was a guest at the home of defendants Jason Mengior Pritchard Sr., Jason M Pritchard II, David Garrett and Desiree Garrett. Defendants allegedly gave alcoholic beverages to plaintiff and provided more alcohol after plaintiff was obviously intoxicated. Plaintiff left the location, apparently on foot, and was struck by a car. The parties are all in agreement that plaintiff's negligence claim relies on ...

Excerpt: ...On October 31, 2022, plaintiff John Doe, a minor by and through his guardian ad litem, Sara Parker, filed suit against defendants Fresno Unified School District and William Duprey regarding claims of sexual abuse, and negligent hiring and supervision in or around September 2019.1 On May 18, 2023, plaintiff A.J., a minor by and through his guardian ad litem Jose Miguel Juarez, filed suit against defendants Fresno Unified School District and Willia...

Excerpt: ...tate facts sufficient to constitute a cause of action, with leave to amend. Plaintiffs shall serve and file their third amended complaint within ten days of the date of service of this order. All new allegations shall be in boldface. Explanation: CSU and the Association's Demurrer to Third Cause of Acton: Defendants demur to the third cause of action for intentional interference with contractual relationship on the ground that they are not "stran...

Excerpt: ...(b); Code Civ. Proc., S 437c, subd. (h).) Explanation: Withdraw Admissions The court may permit a party to withdraw or amend an admission made in response to requests for admission only if the court finds: 1) the admission resulted from "mistake, inadvertence or excusable neglect;" and 2) no substantial prejudice to the requesting party will result from allowing the admission to be withdrawn or amended. (Code Civ. Proc., S 2033.300, subd. (b).) T...

Excerpt: ...nterprises, Inc. ("Plaintiff"). Big Valley challenges the proof of service, which indicates service on a Jane Doe, arguing that Jane Doe is not one of the statutory persons upon whom service on a corporation may be effected. Where the party to be served is a corporation, summons may be served on, among others, the corporation's: agent for service of process; or president, chief executive officer, or other head of the corporation, a vice president...

Excerpt: ...ke plaintiff's objections in the responses, as plaintiff waived the right to object when he failed to serve timely responses and thus the objections are improper. Explanation: under Code of Civil Procedure section 2033.280, If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply: (a) The party to whom the requests for admission are directed waives any objection to the requests, including ...

Excerpt: ... set one. (Code Civ. Proc. SS 2030.290, subd. (b), and 2031.300, subd. Plaintiff is ordered to serve complete verified responses to all discovery set forth above, without objection, within 20 days of the clerk's service of the minute order. To deem defendant's request for admissions, set one, admitted by plaintiff Sukhwinder Singh. (Code Civ. Proc. 52033.280, subd. (b).) To require defendant to pay $120 for moton fees to the clerk (in addition to...

Excerpt: ...gainst plaintiff in the amount of $1800, payable within 10 days of the date of this order, with the time to run from service of this minute order by the clerk. Explanation: Discovery Motions Generally As a preliminary matter, motions to compel compliance with separate discovery requests ordinarily should be filed separately. Despite the fact that plaintiff has only set one motion on the court's calendar, the court will rule on the motion, which i...

Excerpt: ...ubd. To grant plaintiff's request for monetary sanctions in the amount of $1,860 against defendant Brooklyn Moving Inc. payable to plaintiffs counsel within thirty (30) days from the date of this order. Explanation: Code of Civil Procedure section 2023.010 defines "misuses of the discovery process" as including, "failing to respond or submit to an authorized method of discovery" and "disobeying a court order to prov-de discovery." (Code Civ. Proc...