Excerpt: ...r arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, shall be valid, irrewcable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (9 U.S.C. S 2.) "In recognition of Congress' principal purpose of ensuring that private arbitration agreements are enforced according to their terms, we have held that the FAA pre-empts state laws which 'require a...

Excerpt: ... (Code Civ. Proc. S 430.10, subd. (e).) Plaintiffs shall serve and file their second amended complaint within 10 days of the date of service of this order. Explanation: First Cause of Action: Defendant Campus Pointe Commercial (CPC) demurs to the first cause of action for breach of contract on the ground that the plaintiffs have failed to state facts sufficient to constitute a valid cause of action. Defendant contends that plaintiffs have failed ...

Excerpt: ...To grant the moton to strike, in part, and deny, in part. The alter ego allegations, specifically the allegations at page two, paragraph four, lines 12-19, are striken without leave to amend. The motion to strike the allegations pertaining to the aiding and abet-tng of FEHA violations is denied. (Code Civ. Proc., S 436, subd. (a).) Explanation: Demurrer • Demurrer to the Entire Complaint Ms. Simpson demurs to the entirety of the complaint on th...

Excerpt: ... her to discrimination and retaliation on the basis of the medical conditions of plaintiff's mother, Betty Rush ("Rush"). Plaintiff has confirmed through written discovery that she does not have a disability which required accommodation. Therefore, her claims for failure to accommodate and failure to engage in the interactive process are also based on Rush's alleged medical conditions. Motion to Quash Subpoena of Medical Records Defendant seeks R...

Excerpt: ...rties 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 compel arbitration bears the burden of proving by a preponderance of the evidence the existence of an arbit...

Excerpt: ...er $4.7 million. Plaintiff has shown that she suffered special medical damages of over but she only seeks about apparently based on the amount that her insurance company paid for her medical costs. Yet she also admits that her insurance company only has a lien of $3,166.14 for medical costs, so it is unclear why she seeks over $39mo for medical costs. Plaintiff also seeks lost earnings to date of $82,944, plus another $642,815 in future earnings....

Excerpt: ...e dispute is covered by 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 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.) This case is governed by the F...

Excerpt: ...e and serve opposition to plaintiff's Request for Pretrial Discovery Conference. Plaintiff had filed her request with the court on September 27, 2022, and served it on defendant by email that same day. Thus, per The Fresno Superior Court Local Rules, rule 2.1.17A.2, defendant had until Tuesday, October 4, 2022 (five court days) to file and serve its opposition. No opposition was filed, and on October 11, 2022, the court issued an order noting def...

Excerpt: ... order by the clerk, the DPSS shall produce all documents responsive to the subpoena served on August 29, 2022, with social security numbers and third party identities redacted. To deny the motion to compel plaintiff to sign an authorization for the release of records. To deny all requests for sanctions. Explanation: Motion to Compel DPSS to Comply with Subpoena Defendant issued a subpoena for plaintiff's employment and medical records from the A...

Excerpt: ...d, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party's agent: (1) An agreement that by its terms is not to be performed within a year from the making thereof." (Civ. Code, S 1524, subd. (a)(l).) Thus, "[aln oral agreement that by its terms is not to be performed within a year from the making thereof is invalid." (Gressley v. Williams (1961) 193 Cal.App.2d 636, 640, internal c...

Excerpt: ...he minute order by the clerk. Explanation: On December 16, 2021, this court sustained defendant's demurrer to plaintiff's original complaint, with leave to amend, except that leave to amend was not granted to state a petition for a writ of mandate. The court found that, among other things, the original complaint failed to state facts to support the purported causes of action for workplace discrimination and retaliation. On December 27, 2021, plai...

Excerpt: ...d cause of action, with leave to amend, as directed in the explanation below. Plaintiff is granted 10 days' leave to file the First Amended Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: Quiet Title Plaintiff concedes that there is no cause of action stated in the complaint for quiet title. Thus, all defendants are demurring to is surplusage in the compl...

Excerpt: ...h 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 motion for class certification does not relieve the Court of the duty of determining whether certification is appr...

Excerpt: ...), and Request for Production of Documents (Set One). Plaintiff Novalee Solis is ordered to serve verified responses, without objections, to defendant within 30 days of service of the minute order by the clerk. To grant defendant Walmart, Inc.'s request to deem Requests for Admissions admitted. The truth of the matters specified in the Requests for Admissions, Set One, are to be deemed admitted unless plaintiff Novalee Solis serves, before the he...

Excerpt: ...the court's signature within 10 days of the date of service of this order. Explanation: Plaintiff alleges two causes of action against the Clovis Rodeo Association based on general negligence and premises liability. Plaintiff alleges that she went onto the Clovis Rodeo grounds after midnight with a cowboy who was a participant in the rodeo in order to take a picture of a horse. She went into a trailer where the horse was being kept, and the horse...

Excerpt: ...te an auto repair business, with the oral agreement being that even though title would be taken the Morenos' names, plaintiff would make the payments on the property (mortgage, insurance, taxes, and maintenance), and the Morenos would just "hold title" in their name for plaintiff's convenience. This alleged agreement (the "Moreno Agreement") has spawned two legal action and years of litigation, with this achon commenced in 2016. At one point the ...

Excerpt: ...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) 10 Cal.2d 709, 713- 714.) The court also retained jurisdiction to make further orders as needed to enforce the judgment. (Stipulated ...

Excerpt: ...ttlement shall be submitted to the agency at the same time that it is submitted to the court." (Lab. Code, S 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 Moniz v. Adecco USA, Inc., (2021) 72 Cal.App.5th 56, did provide some guidance. The court explained that "many federal district courts have applied the 'fair, rea...

Excerpt: ...else has to be proven, with admissible evidence, in order for due process concerns to be met. The Due Clause requires that the named plaintiff at all times adequately represent the interests of the absent class (Phillips Petroleum Co. v. Shutts (1985) 472 U.S. 797, 812.) The certification pruess ensures that is the case. This is a basic constitutional requirement which applies to all class actions, federal and state. "Confronted with a request fo...

Excerpt: ...tal amount of $210 against defendant Maria Mauricio and Martinez, Dieterich & Zarcone Legal Group, jointly and severally, 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. To grant and to award monetary sanctions in the total amount of $630 against defendant Jose Luis Garcia Alcala and Martinez, Dieterich & Zarcone Legal Group, jointly and severally, payable within 20 days o...

Excerpt: ...nt 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 motion for class certification does not relieve the Court of the duty of determining whether certifi...

Excerpt: ...es of action, for negligence and for declaratory relief. In determining a demurrer, the court assumes the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts. (Miklosy v. Regents of university of California (2008) 44 Cal.4th 876, 883.) On demurrer, the court must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. (Barquis v....

Excerpt: ...o request 24 without objections within 20 days of the date of service of this order. Any responsive documents shall be unredacted. To deny defendant's motion for sanctions against plaintiff and her counsel. (Code Civ. Proc. S 128.7.) Explanation: Plaintiff's Motion to Compel Further Response: First, to the extent that defendant argues that the court lacks jurisdiction to hear plaintiff's motion because plaintiff's counsel did not timely serve the...

Excerpt: ... Bourn Family LLC's motions to compel for Form Interrogatories—Economic Litigation (Set One), Form Interrogatories—General (Set One), Special Interrogatories (Set One), and Request for Production (Set One). To grant defendant Bourn Family LLC's request to deem Requests for Admissions (Set One) admitted. The truth of the matters specified in the Requests for Admissions are to be deemed admitted unless plaintiff Valerie Gonzales serves, before ...

Excerpt: ...iminary 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 motion for...

Excerpt: ...e at bench on April 9, 2021. "After six months from entry of default, a trial court may still vacate a default on equitable grounds even if statutory relief is unavailable." (Rappleyea v. Campbell, supra, 8 Cal.4th 975, 981 (Rappleyea).) Equitable grounds include extrinsic fraud and mistake. (Ibid.; Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 736 (Aldrich).) Although "the terms 'fraud' and 'mistake' have been given a broa...

Excerpt: ...me with certain warranties. Problems with the vehicle ensued which form the basis of the instant complaint for damages. Plaintiffs brought seven causes of acton against defendant Nissan North America, Inc. for negligent repair and failure to replace the vehicle. All of the causes of action against defendant comprise alleged breaches of Civil Code, section 1790 et seq. regarding consumer warranties, and fraud by omission that defendant was aware o...

Excerpt: ... be amended will run from service of the order by the clerk. All new allegations shall be in boldface font. Explanation: On December 29, 2016 plaintiff purchased a new 2016 Hyundai Veloster from Lithia Hyundai of Fresno, which vehicle was manufactured or distributed by defendant Hyundai Motor America ("HMA"). Problems with the vehicle ensued, specifically with the 1.6L Gamma engine, and this "lemon law" action was filed on April 13, 2021, against...

Excerpt: ...ant the motions to stay. This action is stayed pending the outcome of the appeals of the judgment of the underlying matter, Nicholas Merlo v. Pristine Surgery Center, Inc., Fresno Superior Court Case No. 18CECG03026, consolidated under Appeal No. F083804. To grant defendants' requests for judicial notice. To take the demurrer and motion to compel further responses off calendar in light of the ruling on the motions to stay. The parties shall infor...

Excerpt: ... leave to amend. (Code Civ. Proc. § 430.10, subd. (e).) To grant defendants Freitas and Sea Pine Ventures' motion for judgment on the pleadings as to the first cause of action in the third amended complaint for failure to state facts sufficient to constitute a cause of action, without leave to amend. (Code Civ. Proc. § 438.) To deny defendants' motion as to the third cause of action. Plaintiffs shall serve and file their fourth amended complain...

Excerpt: ...Production of Documents; and for Monetary Sanctions Tentative Ruling: To grant and to award monetary sanctions in the total amount of $750 against plaintiff Tiernan Deedon, and plaintiff's attorney Justin B. Toobi, jointly and severally, 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 Mikhail Safwat, aka Safwat Michael's (“Mr. Safwat”...

Excerpt: ...ratory relief filed September 29, 2021. Plaintiffs seek to declare title to and the sale of real property in Fresno known as 7212 W. Belmont Avenue (“7212 Property”) and 7182 W. Belmont Avenue (“7182 Property”). Demurrer Generally 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 stati...

Excerpt: ...rifications to his responses to Special Interrogatories, Set Two and Request for Production, Set Two, no later than 30 days from the date of this order, with the time to run from the service of this minute order by the clerk. The matters specified in plaintiff's Request for Admission, Set One, are deemed admitted, unless plaintiff serves, before the hearing, a proposed response to the requests for admission that is in substantial compliance with ...

Excerpt: ...lames BBQ, pursuant to Code of Civil Procedure sections 428.10, 426.50 and 428.50.1 Defendant contends that it seeks to state a claim against a third-party, Rollin Flames, BBQ. Plaintiff opposes on the grounds that Rollin Flames BBQ is plaintiff's fictitious business name, and has always been run as a sole proprietorship. (Aguilar Decl., ¶¶ 2- 3.)2 Whether the cross-complaint states a claim against an existing party or a third-party, and thus w...

Excerpt: ...he 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 Moniz v. Adecco USA, Inc., (2021) 72 Cal.App.5th 56, did provide some guidance. The court explained that “many federal district courts have applied the ‘fair, reasonable, and adequate' standard from class action cases to evaluate PAGA sett...

Excerpt: ... service by the clerk of the minute order. All new allegations in the Second Amended Complaint are to be set in bold type. To overrule the demurrer to the Second Cause of Action To sustain the demurrer to the Fifth Cause of Action. Plaintiff is given leave to amend on the condition that he is able to allege compliance with the Tort Claims Act. If plaintiff chooses to further amend, he is allowed 30 days' leave to file a Second Amended Complaint. ...

Excerpt: ...32, subd. (a).) Moreover, “[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).) “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 o...

Excerpt: ...32, subd. (a).) Moreover, “[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).) “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 o...

Excerpt: ...on, Set One Plaintiff's Motion to Compel Defendant to Provide Verifications to Form Interrogatories, Set Two Plaintiff's Motion to Compel Defendant to Provide Verifications to Special Interrogatories, Set Two Plaintiff's Motion to Compel Defendant to Provide Verifications to Requests for Production, Set Two Plaintiff's Motion to compel Defendant to Provide Verifications to Requests for Admission, Set Two Plaintiff's Motion to Compel Deposition of...

Excerpt: ... deny Defendants' motions to compel responses to form interrogatories, special interrogatories, production of documents and requests for admissions admitted, as verified responses have been provided. To grant Defendants' sanctions. Plaintiff is ordered to pay monetary sanctions in the amount of $1,325 to the Freeman Law Group within 30 days. (Code Civ. Proc. §§ 2023.010, 2033.280.) To deny Plaintiff's request for sanctions. To deny the Request ...

Excerpt: ...th and seventh causes of action in his complaint. (Code Civ. Proc. § 437c.) To deny plaintiff's motion for summary judgment as to defendants' cross-complaint. (Ibid.) Explanation: Plaintiff's Motion for Summary Adjudication of Plaintiff's Sixth and Seventh Causes of Action: Plaintiff moves for summary adjudication of the sixth and seventh causes of action of his complaint, which seek a determination that defendants Moghaddam and Najjaran are alt...

Excerpt: ....) Explanation: Petitioner California FAIR Plan Association is the insurer of the home owned by Respondent Amanda Arteno. On September 6, 2020 the home sustained fire and smoke damage and Respondent submitted a claim for the loss under the insurance policy issued by Petitioner. A contractor hired by Respondent prepared an estimate for the cost to repair the damages and return the property to its pre-loss state. The contractor's estimate is signif...

Excerpt: ...ator's award. (Code Civ. Proc., § 1285.2.) If oral argument is timely requested, the matter will be heard on Wednesday, February 22, 2023 at 3:30 p.m. in Dept. 503 Explanation: Under Code of Civil Procedure section 1285, “Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award.” (Code Civ. Proc., § 1285.) “A response to a petition under this chapter may request the court t...

Excerpt: ...timely requested, the matter will be heard on Wednesday, February 22, 2023 at 3:30 p.m. in Dept. 503 Explanation: Under 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 ...

Excerpt: ... timely requested, the matter will be heard on Wednesday, February 22, 2023 at 3:30 p.m. in Dept. 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 court to reconsider its decision granting certific...

Excerpt: ... § 1032, subd. (a).) Moreover, “[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).) Items of allowable costs are set forth in Code of Civil Procedure section 1033.5, subdivision (a), and disallowed costs are set forth in subdivision (b). Items not expressly mentioned in the statute “upon application may...

Excerpt: ...1. 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 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.Ap...

Excerpt: ...ave to amend as to plaintiffs Leslie Trew and Najib Allabadi. To grant leave to amend as to plaintiff Zade Allabadi. To grant the motion to strike the prayer for attorney's fees, as improperly alleged. (Code Civ. Proc., §§ 435, 436.) To deny leave to amend to seek attorney's fees. Plaintiffs 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. To order ...

Excerpt: ...15 Cal.App.4th 1205, 1207.) The court 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...

Excerpt: ... process” to include “failing to respond or submit to an authorized method of discovery” and “disobeying a court order to provide discovery.” (Code Civ. Proc. § 2030.010, subds. (d) & (g).) Code of Civil Procedure section 2023.030 states, in relevant part: To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or atto...