Excerpt: ...to be set in boldface type. Explanation: In the case at bar, eight causes of action are alleged: (1) battery; (2) negligence; (3) intentional infliction of emotional distress; (4) breach of the implied warranty of habitability; (5) breach of the covenant of quiet enjoyment; (6) violation of Civil Code section 1942.4; (7) private nuisance; and (8) public nuisance. Defendant Granville Realty, Inc. now demurs to causes of action: one, six, and eight...

Excerpt: ...o amend. (Code Civ. Proc., § 430.10, subd. (e).) To grant the motion to strike, with leave to amend. (Code Civ. Proc., §§ 435 and 431.10, subd. (b).) Should plaintiff desire to amend, the first amended complaint shall be filed within ten (10) days from the date of this order. The new amendments shall be in bold print. Should plaintiff elect not to amend, defendant shall file a responsive pleading within thirty (30) days from the date of this o...

Excerpt: ... sets one and three, and request for monetary sanctions against defendant. (Code Civ. Proc. §§ 2030.300; 2031.310.) Explanation: Under Fresno Superior Court Local Rule 2.1.17, before a party may file a motion to compel further responses to discovery requests, they must first file a request for a pretrial discovery conference and obtain express leave of court to bring their motion. (Fresno Sup. Ct. Local Rules, Rule 2.1.17 A.) The moving party's...

Excerpt: ... be proper, allow a party to amend any pleading. (Code Civ. Proc. § 473(a)(1).) Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit. Thus, 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; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.) The policy favoring amendment is so strong that it is a rare case in ...

Excerpt: ... 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.” (Code Civ. Proc. § 473(b).) Relief can be based either on: ‐ An 'attorney affidavit of fault', in which event, relief is mandatory; or ‐ Declarations or other evidence showing 'mistake, inadvertence, surpr...

Excerpt: ....) Code of Civil Procedure, section 387, subdivision (d) provides that “[t]he court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied … [¶] (B) The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impe...

Excerpt: ...ant monetary sanctions against defendant and its attorney, Larry Shapazian, in the amount of $960. Defendant and its attorney, jointly and severally, are ordered to pay monetary sanctions in the amount of $960 to the Khorshidi Law Firm, within 30 days of service of this order. Explanation: A court “shall” impose monetary sanctions under Code of Civil Procedure section 2030.300, subdivision (d) against any party, person, or attorney who unsucc...

Excerpt: ....) In addition, “[s]ome of the facts relevant to the development of a constitutionally adequate notice plan normally will not be immediately obvious from the class definition itself. Regardless of the size of the class or other relevant circumstances, a demand that the representative plaintiff show how individualized notice could be provided to class members in order to establish an ascertainable class could preempt a more careful, nuanced, and...

Excerpt: ...dopted) Tentative Ruling. When reviewing a PAGA settlement, courts look for it to provide relief that is “genuine and meaningful, consistent with the underlying purpose of the statute to benefit the public[.]” (O'Connor v. Uber Technologies, Inc. (N.D. Cal. 2016) 201 F.Supp.3d 1110, 1133.) Following O'Connor, one court stated that the showing the court should look for is that the settlement terms (1) meet the statutory requirements set forth ...

Excerpt: ...ing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co‐obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005.” (Code Civ. Proc., § 877.6, subd. (a)(1).) “The issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and any counter affidavits filed ...

Excerpt: ...udice, or when separate trials will be conducive to expedition and economy, the court may order a separate trial of any cause of action or of any separate issue, or any number therefrom. (Code Civ. Proc. § 1048, subd. (b).) Such an order may be made on motion of a party, after notice and hearing. (Id. § 598.) Separate trials, in this context, may be referred to as a bifurcation. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 880, 887...

Excerpt: ... of Civil Procedure section 437c. If motions to compel are necessary, defendant is excused from complying with Rule 2.1.17 of The Superior Court of Fresno County, Local Rules. Given how far out hearing dates are being set at this time, defendant may apply ex parte for hearing dates (or a hearing date) for said motion(s). Even so, counsel should move expeditiously to obtain the sought‐after discovery, since the court is not inclined to grant an ...

Excerpt: ...ary 26, 2020. Without the disclosure of the amount demanded on the Statement of Damages, the court cannot determine whether the amount of judgment requested is proper. Relief granted on default cannot exceed amount demanded in the separate statement. (Code Civ. Proc. §580, subd. (a); Greenup v. Rodman (1986) 42 Cal.3d 822, 824 [demand sets ceiling on recovery].) Insufficient Prove‐up Documents The court notes also that the evidence plaintiff h...

Excerpt: ...d. (b).) Should plaintiff desire to amend, the second amended complaint shall be filed within ten (10) days from the date of this order. The new amendments shall be in bold print. Should plaintiff elect not to amend, defendant shall file a responsive pleading within thirty (30) days from the date of this order. Explanation: Demurrer According to the court record, on March 11, 2021 defendant's demurrer papers were rejected for failure to pay the r...

Excerpt: ...irst amended complaint on the grounds that all causes of action stated therein are barred by the applicable statute of limitations and fail to state facts sufficient to constitute a cause of action. Demurrer, in general A demurrer tests only the legal sufficiency of the pleading. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47.) The pleading is adequate if it apprises the defendant of the factual basis for the plaintiff's cl...

Excerpt: ...own to the plaintiff, and all persons plaintiff “reasonably believes will be materially affected by the action, whether the names of such persons are known or unknown to the plaintiff” (i.e., this includes “persons unknown to be served by publication); 4) the estate as to which partition is sought and a prayer for partition of the interests therein; and 5) where the plaintiff seeks sale of the property, an allegation of the facts justifying...

Excerpt: ...n must be filed on or before September 17, 2021. Explanation: Plaintiff has corrected all the technical issues with the settlement agreement, the notice to class members, and the opt‐out form. However, the declaration of Javier Garcia is insufficient. Even where a motion for class certification is uncontested the court has a duty to determine whether certification is appropriate. (See Rubenstein, 3 Newberg on Class Actions § 7:3 (5th ed.); see...

Excerpt: ...”) to provide further responses to Request for Production of Documents, Set 5, Nos. 105 ‐109, 115‐120, 126 – 131, 137 – 142, 148, 157 – 162, with any withheld documents based on attorney‐client privilege other than that of Flournoy to be identified and described in a privilege log. The documents shall be produced within 20 days of service of the order by the clerk. (Code Civ. Proc., § Code Civ. Proc. § 2031.310, subd. (a).) To den...

Excerpt: ... dates shall run from the new hearing date. Explanation: “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” (Code of C...

Excerpt: ... initially brought to ask for a protective order in the form of a complete stay of discovery pending the ruling on defendant's demurrer to the original complaint. As plaintiff points out, defendant refused to take the motion off calendar once the court had ruled on that motion, sustaining demurrer with leave to amend, but instead defendant attempts to “repurpose” the motion to apply to its demurrer to the First Amended Complaint, which is not...

Excerpt: ...arry Shapazian, in the amount of $2,250. (Ibid.) Defendant and his counsel shall pay sanctions to plaintiffs' counsel within 30 days of the date of service of this order. Explanation: Under Code of Civil Procedure sections 2030.090, 2031.060, and 2033.080, a party served with written discovery requests may move for a protective order to protect them from unwarranted annoyance, embarrassment, oppression, or undue burden or expense. (Code Civ. Proc...

Excerpt: ...hese requests or provide a declaration by the Person Most Knowledgeable that such records do not exist within 10 days of the clerk's service of this minute order. The motion is denied as it relates to Request Nos. 46 and 47. To grant sanctions in the amount of $3,660. Defendant JT2, Inc. shall pay the sum of $3,660 to counsel for plaintiff within 30 days of the clerk's service of this minute order. Explanation: “If, after service of a depositio...

Excerpt: ...2034.300.) To deny plaintiffs' motion for leave to serve a tardy expert witness designation. (Code Civ. Proc. §§ 2034.710, 2034.720.) Explanation: Under Code of Civil Procedure section 2034.300, “[O]n objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the f...

Excerpt: ... described below, must be filed on or before Tuesday, August 24, 2021. The court will entertain a request for continuance to a later date, if plaintiff needs more time. Explanation: Technical Issues: First, insufficient notice of this motion was given: 22 days instead of the required 28 days. (Code Civ. Proc., § 1005, subd. (b); Cal. Rules of Court, Rule 3.764(c)(1).) Since no opposition was filed, this defect was not waived. On this basis alone...

Excerpt: ...on of any contract.” (Code Civ. Proc., § 1281.) Pursuant to Code of Civil Procedure section 1281.2: On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy e...