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: ... 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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: .... 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: ... 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: ...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: ... 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: ...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: ...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: ...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 ...

Excerpt: ...on: Plaintiffs in this action allege various causes of action, including wage and hour violations, stemming from the defendants' alleged misclassification of Certified Registered Nurse Anesthesiologists as 1099 independent contractors. On 12/16/2022, defendant CRAMG filed a Voluntary Petition for Non -Individuals Filing for Bankruptcy under Chapter 7 (“Bankruptcy Petition”). (UMF 3.) On 1/12/2023, defendants filed a Notice of Bankrupt...

Excerpt: ...l dface type. Explanation: “The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading ….” (Code Civ. Proc. § 473, subd. (a); see also, § 576.) There is generally a strong policy in favor of allowing a plaintiff to amend the complaint. (Glaser v. Meyers (1982) 137 Cal.App.3d 770, 776- 777; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.) Accordingly, the California Supreme Court has he...

Excerpt: ... run from the service of this minute order by the clerk. Defendant is granted 10 days' leave to amend to file an amended answer to plead facts sufficient to constitute the affirmative defenses he has already raised. To the extent defendant seeks to amend to include new defenses that were not previously raised, defendant must file his own noticed motion for leave to amend. The time to file the amended answer will run from the service by the cle...

Excerpt: ...amended complaint within 10 days of the date of service of this minute order by the clerk. All new allegations shall be in boldface. Explanation: Plaintiff PM Transport, Inc. (“Plaintiff”) filed a Complaint regarding the lease of two trailers. The C omplaint states six causes of action: (1) breach of contract; (2) breach of implied covenant of good faith and fair dealing; (3) negligence; (4) unjust enrichment; (5) conversion; (6) violation o...

Excerpt: ...oot. Explanation: SUMMARY JUDGMENT Evidentiary Objections The court finds plaintiff's objection to Pappas Declaration paragraph 3, and Exhibit A attached thereto, moot in light of plaintiff's submission of the same evidence in her opposition. The court overrules plaintiff's remaining objections to the Pappas Declaration. Merits A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is e...

Excerpt: ...ement 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 arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agree...

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: ... 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: ...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: ... 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: ...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: ...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: ...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: ...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)...