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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ....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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ..., 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: ...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: ...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: ...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: ... 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: ...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: ...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: ... 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...