Excerpt: ... by the parties and submitted to the court for signature. Explanation: Plaintiffs originally moved to compel nonparty Fresno County Public Defender (“FCPD”) to produce documents responsive to seven requests for production of documents contained in a deposition subpoena. Following a continuance so that the parties could file a joint separate statement of items in dispute, the discovery dispute has been narrowed to four categories of documents ...

Excerpt: ...y September 13, 2019. To set a return date of Thursday, May 21, 2020 for a report to the Court of the final distribution and amendment of the judgment pursuant to Code of Civil Procedure section 384(b). Explanation: 1. Final Approval of Settlement California Rules of Court, Rule 3.769(g) states: “Before final approval, the court must conduct an inquiry into the fairness of the proposed settlement.” Subsection (h) states: “If the court appro...

Excerpt: ...filed motions to quash service of summons on the grounds that the manner of service actually performed was not “personal service” in accordance with Code of Civil Procedure §415.10, et seq. According to the representations by Plaintiff in her opposition, the summons and complaint were left in envelopes with the secretary at the office of Defendant School District. Defendants claim the envelopes were unmarked, but Plaintiff has provided photo...

Excerpt: ...motion for leave to file a First Amended Complaint. Plaintiff seeks (1) to add a new Doe Defendant, Laboratory Corporation of America, as Plaintiff's joint employer; and (2) to add a cause of action for failure to hire Plaintiff in violation of FEHA. The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) If a motion to amend is made in a timely fashion, a...

Excerpt: ...Defendants Wildwood Packing and Cooling, Inc. and Luke Woods to Continue Trial in Case Number 15CECG03406. Tentative Ruling: To deny the motion for summary judgment or, in the alternative, for summary adjudication in Case Number 15CECG03406. To grant the motion for consolidation. Case Number 15CECG03406 is thereby ordered consolidated with Case Number 18CECG03169 for all purposes. All trial dates and associated discovery deadlines are thereby ord...

Excerpt: ...order. Explanation: This is a legal malpractice action. Plaintiff alleges that he retained defendants Nicholas Wagner and Wagner, Jones, Kopfman & Artenian to represent him in a wrongful discharge matter filed in federal court against his employer. In his causes of action for legal malpractice and breach of fiduciary duty, plaintiff alleges that SK Foods filed for bankruptcy, and defendants negligently represented him in that they (1) failed to p...

Excerpt: ...ute a cause of action against that defendant. The grounds for the motion must appear on the face of the challenged pleading or from matters that may be judicially noticed. The trial court must accept as true all material facts properly pleaded[.]” (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1219, internal citations and quotation marks omitted.) “A dangerous condition exists...

Excerpt: ...seph A. West to pay the sum of $1,030 in sanctions to Cochran, Davis & Associates within 30 days of the clerk's service of this order. Explanation: Special Interrogatories, Set Two were served on plaintiff by mail on March 29, 2019. (Hansen Decl. ¶ 1; Ex. A.) Responses were mailed August 1, 2019, after this motion was filed June 17, 2019. (West Decl. ¶ 2.) The motion to compel the initial responses to the form interrogatories is moot, save for ...

Excerpt: ...tion to strike punitive damage allegations with leave to amend. A Fourth Amended Complaint must be filed and served within 10 days of the clerk's service of this minute order. New allegations must be in boldface type font. Explanation: Demurrer: First Cause of Action – Breach of Insurance Contract CACI No. 2300 sets forth three elements of a claim for breach of an insurance contract by nonpayment: (1) plaintiff suffered a loss, which was covere...

Excerpt: ...eing stricken under Code of Civil Procedure section 435. It appears to be appropriate to raise this issue at the pleading stage via a motion to strike. In Reply defendant cited to Interactive Multimedia Artists, Inc. v. Superior Court (Allstate Ins. Co.) (1998) 62 Cal.App.4th 1546 for this issue. However, there the motion to strike was brought as a motion in limine (Id. at p. 1550), so it was not done at the pleading stage. However, in Nationwide...

Excerpt: ...or legal] cause between the breach and (4) the plaintiff's injury.” (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339.) Whether a duty exists is a question of law. (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128.) “[E]ach person has a duty to use ordinary care and is liable for injuries caused by his [or her] failure to exercise reasonable care in the circumstances. (Parsons v. Crown Disposal ...

Excerpt: ...demurrer to test the truth of the plaintiff's allegations or the accuracy with which [plaintiff] describes the defendant's conduct.” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) However, though “allegations of a complaint must be accepted as true for purposes of demurrer, the facts appearing in exhibits attached to the complaint will also be accepted as true and, if contrary to the allegations in the...

Excerpt: ...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.” (Code Civ. Proc. §473(b).) “Where a default is entered because defendant has relied upon a codefendant or other interested party to defend, the question is whether the defendant was reasonably justified under the circumstances in ...

Excerpt: ...h was a proximate or legal cause of injuries suffered by the plaintiff.” (United States Liab. Ins. Co. v. Haidinger– Hayes, Inc. (1970) 1 Cal.3d 586, 594.) Likewise, in order to establish premises liability on a negligence theory, a plaintiff must prove duty, breach, causation and damages. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205. Defendant's motion is based solely on the theory that property owners are not liable for damages cause...

Excerpt: ...Hospital & Medical Center's the motion to strike the fourth cause action and the prayer for relief for civil penalties pursuant to Health & Safety Code § 7158.3(b)(4), without leave to amend. (Code Civ. Proc. § 436(a).) Defendants shall file their answers to the Fifth Amended Complaint within 10 days of service of the order by the clerk. Explanation: Initially the court notes that Fresno Community Hospital Medical Center (“Community Hospital�...

Excerpt: ... the reply brief, is denied without prejudice. Explanation: Plaintiff Armida Gonzales has filed this motion for leave to file a First Amended Complaint. Plaintiff seeks to add causes of action for vicarious liability for the tortious acts and omissions of an employee and/or independent contractors, violation of a mandatory duty, and dangerous condition of public property against Defendants City of Fresno and Fresno Housing Authority (FHA). The FA...

Excerpt: ...e statement, then plaintiffs' separate statement shall be filed by August 8, 2019, and opposing parties' responsive separate statement shall be filed by August 21, 2019. Explanation: Plaintiffs move to compel nonparty County of Fresno Public Defender to produce documents responsive to seven requests for production of documents contained in a deposition subpoena. However, plaintiffs have not filed the required separate statement, which the court b...

Excerpt: ... and file his first amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer: Defendant Saelee demurs to the first cause of action for violation of the Unruh Act, contending that the Unruh Act only applies to “business establishments” and not individuals, and therefore plaintiff cannot state a claim against her. However, defendant has failed to show that plaintiff c...

Excerpt: ...be answered will run from service by the clerk of the minute order plus 5 days for service via mail. (CCP § 1013.) Explanation: Demurrer to a Common Count A common count is not usually subject to a general demurrer for failure to state sufficient facts given that it is not a specific cause of action. “[R]ather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that aris...

Excerpt: ... Civ. Proc. §§ 435, 436.) Plaintiff shall serve and file her first amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: Demurrer: First, it is somewhat unclear exactly which causes of action plaintiff is actually attempting to allege. The form complaint has boxes checked for breach of contract and personal injury, as well as an attached claim labeled “negligent inflictio...

Excerpt: ...ervice via mail. (CCP § 1013) Finally, the Third Amended Complaint must be served on all named Defendants on the grounds that the defaults have been opened. (Engebretson & Co., Inc. v. Harrison (1981) 125 Cal.App.3d 436, 442‐443) Explanation: Background This action concerns property located at 536 E. Street, Fresno. It is a 2 bedroom, one bathroom house consisting of 472 sq. feet. On December 27, 2017, the Plaintiffs filed a verified Complaint...

Excerpt: ...vidence is provided. Plaintiff does point to the provision within the settlement agreement authorizing attorney's fees and costs, but no evidence is provided as to the nature and value of the services rendered by plaintiff's attorney, Mr. Thornton. Such is required before attorney's fees can be awarded. (See City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 784 [The party seeking attorney's fees has the burden of establishing entitleme...

Excerpt: ...ttorney's fees in the amount of $1,260 and costs in the amount of $60. To deny the request for sanctions pursuant to Code of Civil Procedure section 128.7. Explanation: Code of Civil Procedure Section 664.6 provides as follows: “If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court . . . for settlement of the case . . . the court, upon motion, may enter judgment pursuant to the terms...

Excerpt: ...ive class actions are provisionally designated complex upon filing. California Rules of Court, Rule 3.400(c)(6). Subpart (b) of that rule states “In deciding whether an action is a complex case under (a), the court must consider, among other things, whether the action is likely to involve: (1) Numerous pretrial motions raising difficult or novel legal issues that will be time‐consuming to resolve; (2) Management of a large number of witnesses...

Excerpt: ...roc. § 1033.5, subd. (c)(4).) All allowable costs must be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation, and they must be reasonable in amount and actually incurred. (Code Civ. Proc. § 1033.5, subd. (c)(1), (2) and (3).) On a motion to tax costs, the initial burden depends on the nature of the costs that are being challenged. [T]he mere filing of a motion to tax costs may be...