Excerpt: ...with adverse interests. The Complaint identifies three different legal actions wherein defendants represented parties with adverse interests: the Akoo, Misaghi and Sanchez actions. The Akoo action was filed on 7/15/20, and on 8/3/20 defendants accepted service of the Complaint and thereafter continued to litigate the matter. The Misaghi action was filed on 2/1/21. Defendants represented the defendant in that action, and filed an Answer and Cross�...

Excerpt: ... 85, subdivision (a), “an action or special proceeding shall not be treated as a limited civil case unless all of the following conditions are satisfied: [¶] (a) The amount in controversy does not exceed twenty‐five thousand dollars ($25,000).” (Code Civ. Proc. § 85, subd. (a).) “As used in this section, ‘amount in controversy' means the amount of the demand, or the recovery sought, or the value of the property, or the amount of the l...

Excerpt: ...mended Complaint. The time to such pleading will run from service by the clerk of the minute order. All new allegations in the pleading are to be set in boldface type. Explanation: Demurrer to the First and Fourth Causes of Action for Breach of Written Contract and Breach of Implied Covenant of Good Faith and Fair Dealing: Defendants demur to the first and fourth causes of action on the grounds that these causes of action cannot be maintained as ...

Excerpt: ... § 430.10, subds. (e) and (f).) Plaintiff is granted 20 days' leave to file a First Amended Complaint. The time to file such pleading will run from service by the clerk of the minute order. All new allegations in the pleading are to be set in boldface type. Explanation: Untimely Opposition: “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days […] before the hearing.�...

Excerpt: ...he parties as indicated below. (Code Civ. Proc., § 2025.450, subd. (c)(1).) To impose $2,865 in monetary sanctions, to be paid within 30 days to counsel for defendant. Explanation: The motion is brought pursuant to Code of Civil Procedure section 2025.450. subdivision (a), which provides: If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an o...

Excerpt: ... Young moves for summary judgment of the entire Complaint against her on the ground that she did not grant permission to the driver, defendant Ramzy Ibrahim, to drive her vehicle on the date of the accident, or on any other date. Therefore, she contends that plaintiff Felix Guevara, who was a passenger in the car and who was injured when Ibrahim allegedly drove the car in a negligent manner and caused it to roll over, cannot recover against her u...

Excerpt: ...ion (a), “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by 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 demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may ...

Excerpt: ...; and (3) battery. Defendants Kevin F. Ciresi, M.D., and Kevin F. Ciresi, M.D., Inc. (together “Defendants”) bring a general demurrer as to the third cause of action, for battery, for failure to state facts sufficient to constitute an action, and a specially demurrer to the third cause of action for uncertainty. Applicable Standards On a demurrer a court's function is limited to testing the legal sufficiency of the complaint. A demurrer is si...

Excerpt: ...nding between the same parties on the same causes of action. (Code Civ. Proc. § 430.10, subd. (c).) It claims that plaintiffs in the present action are members of the putative class of an earlier filed action in Fresno Superior Court for the same wage and hour claims against the same defendant. (See Defendant's Request for Judicial Notice, Exhs. 1 and 2, Complaint and First Amended Complaint filed in Gonzalez v. Charlie's Enterprises, Inc., et a...

Excerpt: ...ifornia and federal law “favor[] the enforcement of valid arbitration agreements.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) Nevertheless, arbitration is a “ ‘matter of consent, not coercion,'” and “ ‘a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.' ” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4...

Excerpt: ... M.D., moves for summary judgment based on the declarations of a medical expert, Lundy Campbell, M.D., who has opined that Dr. Van Putten's care and treatment of plaintiff did not fall below the standard of care, and that nothing he did or failed to do caused plaintiff any injury. “The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care o...

Excerpt: ...division (a), “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by 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 demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as...

Excerpt: ...ification 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. App. 4th 81 (r...

Excerpt: ...aint. Tentative Ruling: To deny each of Pearson's motions for summary judgment as to the Complaint, the Second Cross‐ Complaint, and the First Amended Third Cross‐ Complaint. To deny summary adjudication as to the Complaint. To deny summary adjudication as to the First and Second Causes of Action of the Second Cross‐ Complaint due to lack of standing. To deny summary adjudication as to the Fourth, Fifth and Sixth Causes of Action of the Fir...

Excerpt: ...g: To grant plaintiff Guadalupe Vargas' (“Decedent Plaintiff”) motions to compel further responses to (1) Requests for Production of Documents, Set One, as to Request Nos. 3‐49; (2) Form Interrogatories, Set One, as to Request Nos. 1.1, 3.1‐3.7, 4.1‐4.2, 12.1‐ 12.7, 14.1 and 17.1; (3) Special Interrogatories, Set One, as to Request Nos. 1‐33; and (4) Requests for Admissions, Set One, as to Request Nos. 1‐13. (Code Civ. Proc., § 2...

Excerpt: ...challenging a particular, “cause of action, an affirmative defense, a claim for punitive damages, or an issue of duty.” (Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 242.) Furthermore, “[a] motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code of Civ. Proc., § 437c subd. (f)(1); see also Cata...

Excerpt: ...o deny the motion to quash as moot in light of the order on the motion to amend. Explanation: On May 6, 2022, Fresno Community Hospital and Medical Center, d/b/a Community Health System (“CMC”) filed a motion for leave to amend its Complaint to substitute Central California Faculty Medical Group (“CCFMG”), University Neurosciences Institute (“UNI”), Joyce Fields‐Keene (collectively, “Substituted Defendants”) as Doe Defendants 1 ...

Excerpt: ...t's summary judgment ruling. To sustain defendant's objection no. 5. All other objections are overruled pursuant to Code of Civil Procedure, section 437c, subdivision (q). To vacate the September 26, 2022, trial date. Explanation: I. Summary Judgment A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., §437c, subd. (c); Sch...

Excerpt: ...perior Court case no. 21C‐0031, has been resolved. Explanation: “The party against whom a complaint or cross‐complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: … (c) There is another action pending between the same parties on the same cause of action.” (Code Civ. Proc., § 430.10, subd. (c).) “When a special demurrer is interposed alleg...

Excerpt: ...solely responsible for arbitration fees or appointing an arbitrator. Explanation: Plaintiff re‐filed a survival action on behalf of decedent Donald Stegmeir, for negligence to comply with Code of Civil Procedure section 377.34, subdivision (b). In response, defendants filed a motion to compel arbitration, citing an arbitration agreement (“Agreement”) among the parties. In response, plaintiff do not contest the Agreement nor its application ...

Excerpt: ...moving party, defendant Dr. Kuo bears the initial burden of proof to show that plaintiff cannot establish one or more elements of her cause of action or to show that there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2).) Only after the moving party has carried this burden of proof does the burden of proof shift to the other party to show that a triable issue of one or more material facts exists – and this must be shown via speci...

Excerpt: ...burden of persuasion on summary judgment/adjudication rests on the moving party. The initial burden of production is to show, by a preponderance of the evidence, that it is more likely than not that there is no triable issue of material fact. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850.) In determining whether any triable issues of material fact exist, the court must strictly construe the moving papers and liberally construe the dec...

Excerpt: ...ther 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. App. 4th 81 (rev. denied); see also Newberg, Newberg on Class Actions (T...

Excerpt: ... answer shall be set in boldface type. To grant the motion for leave to file cross‐ complaint. Defendant shall file and serve his Cross‐Complaintcomplaint within 2 days of service by the clerk of the minute order. Explanation: Motion for Leave to File Amended Answer The motion, though unopposed, was procedurally deficient in several respects. A motion to amend must comply with California Rules of Court, rule 3.1324. Under this rule, a motion ...

Excerpt: ...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.) Defendant contends that the alleged arbitration agreement in this case is governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1, et seq. S...