Excerpt: ...planation: Under Code of Civil Procedure section 664.6, “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, up on motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performa...

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

Excerpt: ...the allegations of the first amended complaint show that she has an absolute defense to the claim because she has been in adverse possession of the subject property for over five years before the complaint was filed and thus plaintiff has no right to partition the property. Adverse possession may be the basis for either a cause of action or an affirmative defense. (Family Service Agency of Santa Barbara v. Ames (1958) 166 Cal.App.2d 344, 348.)...

Excerpt: ... on t he required Judicial Council forms. To strike the answer filed August 21, 20231. This answer was filed to the First Amended Complaint which was stricken pursuant to the August 18, 2023 Order After Hearing for being filed without leave to amend. Explanatio n: 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), ...

Excerpt: ...ation: Attorney Affidavit of Fault: The court is empowered to relieve a party “upon any terms as may be just … from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable negle ct.” (Code Civ. Proc. § 473, subd. (b).) “[W]henever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an...

Excerpt: ...n: Motions for leave to amend the pleadings are directed to the sound discretion of the trial court. “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading[.]” (Code Civ. Proc., § 473, subd. (a)(1); see also Code Civ. Proc., § 576.) Judicial policy favors resolution of cases on the merits, and thus the court's discretion to allow amendments will usually be exercised in favor of perm...

Excerpt: ...enteri a in light of the dismissal entered November 17, 2023 as to this defendant. Explanation: No Continuance/Extension Plaintiff, after the time his opposition was due, has filed a request for a continuance or extension of time to file his opposition. This req uest was filed as a notice and motion, without a new hearing date attached to said notice. In addition to procedural issues with this request, the request does not appear well founded....

Excerpt: ... 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 include the time, date, and place of the final approval hearing; the notice to be given to th e class; and any other matters deemed necessary for the proper conduct of a settlement hearing. (Cal. Rules of Court, Rule 3.769, subd. (e).) “If the court has certified the action as a ...

Excerpt: ...ithin 10 days of the date of service of this order. Explanation: Under Code of Civil Procedure section 473, subdivision (a), “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding b y adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or de...

Excerpt: ... of the service of this order. All new allegations shall be in boldface. Explanation: Demurrer Defendant GM demurs to the fifth cause of action for "Fraudulent InducementConcealment” on the basis that it is barred by the three -year statute of limitations. (Code Civ. Pr oc. § 430.10, subd. (e).) Plaintiff purchased a 2020 Chevrolet Silverado 1500 truck on February 8, 2020 and this action was not filed until May 11, 2023. Defendant conten...

Excerpt: ...st 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 p ossible difficulty or inability in proving the allegations of his complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) In assessing the sufficiency of the complaint aga...

Excerpt: ... of the min ute order, a proposed judgment dismissing the first amended complaint as to the demurring defendant. Explanation: Plaintiff, S.C., sued the County of Fresno (County), KTDA Group Home, Inc. (Facility), and Does 3 through 25, in a revival action under Cod e of Civil Procedure section 340.1. S.C. alleges he was sexually abused and assaulted in foster care when he was minor, while under the defendants' legal custody, care, and contro...

Excerpt: ...ded Complaint. The time in which the First Amended Complaint can be amended 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. Explanation: Defendants demur to each cause of action asserted in the complaint for failing to state facts sufficient to state a claim and uncertainty. First Cause of Action – Discrimination Government Code section 12940, subdivision...

Excerpt: ..., a nd 71 of the complaint. To deny the motion to strike the “Introduction and Summary of Case” from the complaint. To grant the motion to strike the references to attorney's fees from paragraphs 33, 38, 44, 52, 58, 64 of the complaint, and the prayer for re lief on the second cause of action, paragraph 8, the prayer for relief on the third cause of action, paragraph 7, the prayer for relief on the fourth cause of action, paragraph 8, the pra...

Excerpt: ...he court previo usly denied the motion on the basis that defendant did not meet its burden to establish the independent contractor relationships between the parties. Defendant now moves for summary judgment or, alternatively, summary adjudication on the issue of its duty to plaintiffs with evidence obtained after the court ruled on the initial motion. (Code Civ. Proc. § 437c, subd. (f)(2).) Plaintiffs objection to hearing the second motion on it...

Excerpt: ... grant defendants Fresno County Economic Opportunities Commission and Brian Angus's motion for dismissal. Defendants Fresno County Economic Opportunities Commission and Brian Angus are directed to submit a proposed judgment within five days of service of the minute order consistent with the order. To deny the motion for judgment on the pleadings of the entirety of the second amended complaint. To grant the motion to bifurcate trial into a liabil...

Excerpt: ... 1207.) The cou rt does not decide the merits of the issues, but merely discovers, through the medium of affidavits or declarations, whether there are issues to be tried and whether the parties possess evidence that demands the analysis of a trial. (Melamed v City of Long Beach (1993) 15 Cal.App.4th 70, 76; Molko v Holy Spirit Ass'n (1988) 46 Cal.3d 1092, 1107; Schwoerer v Union Oil Co. (1993) 14 Cal.App.4th 103, 110.) In short, the motion is...

Excerpt: ... nonmeritorio us litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc., §425.16, subd. (a).) Plaintiff/crossdefendant prevailed on her anti -SLAPP motion as to the defendants/cross -complainants' cross complaint. The prevailing defendant on a special motion to strike “shall be entitled” to recover his or her attorney fees and costs, and this fee award is mandatory. (C...

Excerpt: ..., 2024, a t 3:30 p.m., in order to allow the parties to meet and confer in person or by telephone, as required. If this resolves the issues, plaintiff's counsel shall call the court to take the motion off calendar. If it does not resolve the issues, plaintiff's coun sel shall file a declaration, on or before Wednesday, May 1, 2024, stating the efforts made. To grant and to award monetary sanctions in the total amount of $680 against defendant Sa...

Excerpt: ...the mo tion must then prove by a preponderance of evidence that a ground for denial of the motion exists (e.g., fraud, unconscionability, etc.). (Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413- 414; Hotels Nevada v. L.A. Pacific Ctr. , Inc. (2006) 144 Cal.App.4th 754, 758; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) There is a strong policy in favor of arbitration. (AT&T Mobility LLC v. Concepcio...

Excerpt: ... ag reement 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...

Excerpt: ...d to submit to this court, within five days of service of the minute order, a proposed judgment consistent with the court's summary judgment order. To deny Dr. Levine's motion. Explanation: The plaintiffs, Dr. Sarah Yost and Kelly Yost, sued two surgeons, Dr. Derek Taggard a nd Dr. Nicholas Levine, and Fresno Community Hospital and Medical Center dba Community Regional Medical Center and Community Health System ("CRMC") after Dr....

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

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

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

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

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

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

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

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

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

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

Excerpt: ...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: ... 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: ...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: ...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: ...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: ....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: ...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: ...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: ...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: ... 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: ... 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: ...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: ...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: ...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: ...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...