Excerpt: ...ourth causes of action. To sustain, without leave to amend, Harco National Insurance Company's demurrer to the fifth cause of action. Plaintiff is granted 20 days' leave to file a Second 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: Plaintiff filed the operative First Amended Complaint (“FAC”) against de...

Excerpt: ...other causes of action. (Code of Civil Procedure § 430.10, subd. (e).) Plaintiff is granted 10 days' leave to file a First Amended Complaint. The time in which such pleading can be filed will run from service by the clerk of the minute order. New allegations in a First Amended Complaint are to be set in boldface type. Plaintiff shall correctly number the causes of action, and refrain from cumulative or “chain letter” pleading. (Kelly v. Gene...

Excerpt: ...or monetary sanctions. To deny defendant's motion for a protective order. Explanation: Although there are exceptions, generally the scope of discovery is broad. (Williams v. Superior Court (2017) 3 Cal.5th 531, 541; Tien v. Superior Court (2006) 139 Cal.App.4th 528, 536; Code Civ. Proc., § 2017.010.) In Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282 (Liberty Mutual) the plaintiff alleged a workers compensation insurer made ...

Excerpt: ...aced or affected by the order being appealed. (Code Civ. Proc., § 916, subd. (a).) Explanation: “Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter em...

Excerpt: ...ding shall be filed within 20 days of the clerk's service of this order. New or different allegations in the second amended complaint are to be set in boldface type. Explanation: General Demurrer A party may file a general demurrer on claims that “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e); Estate of Moss (2012) 204 Cal.App.4th 521, 535 [“‘A demurrer can be utili...

Excerpt: ...e amount of $630 against plaintiff Camalah Kopacz. Sanctions are ordered to be paid by plaintiff within 20 days of the date of this order, with the time to run from the service of this minute order by the clerk. Plaintiff shall serve responses, without objections, to defendant Fresno Community Hospital and Medical Center's Form Interrogatories, Set One, Special Interrogatories, Set One, Request for Production of Documents, Set One, and Request fo...

Excerpt: ...mber 20, 2022, at 3:30 p.m. in Department 501. To impose a monetary sanction against defendant FCA US LLC in the amount of $5,130, payable no later than thirty (30) days from the date of service of this order. Explanation: Plaintiffs seek to restore jurisdiction of the action to this court by vacating an earlier order compelling arbitration and staying the action. Plaintiffs also seek attorney's fees incurred on the aborted arbitration. Defendant...

Excerpt: ...ore parties are joint tortfeasors or co‐obligors on a contract debt shall be entitled to a hearing 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).) “A determination by the court that the settlement was made in good faith ...

Excerpt: ...xplanation: Code of Civil Procedure section 436 provides, “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading, (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” A motion to strike may be use...

Excerpt: .... Explanation: Defendant Target Corporation moves to strike the punitive damages allegations and prayer from plaintiff's FAC filed on January 13, 2022. The FAC alleges that plaintiff was “injured due to negligently installed and negligently maintained handicap sign located at or near the entrance to the premises.” Punitive damages are sought because defendants “forc[ed] patrons to enter and exit the aforesaid Target retail store through a n...

Excerpt: ...depositions. To grant defendant's request for monetary sanctions against plaintiffs John Geyer and Jarrett Geyer in the amount of $730 against each plaintiff for their unjustified and willful refusal to appear for their depositions. (Code Civ. Proc. § 2025.450, subd. (g).) Plaintiffs shall pay monetary sanctions to defense counsel within 30 days of the date of service of this order. To deny defendant's request for terminating sanctions against p...

Excerpt: ...om service of the notice of ruling and is extended where such notice is served by mail, fax, overnight delivery or electronically. (Code Civ. Proc., §§ 1010.6 and 1013, subd. (a); People v. $20,000 U.S. Currency (1991) 235 Cal.App.3d 682, 692.) New allegations/language must be set in boldface type. Explanation: Demurrer Generally The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumle...

Excerpt: ...o compel the deposition of Julianne Williams without prejudice. (Cal. Rules of Court, rule 3.1345(a)(5), (b).) To grant plaintiff's motion to compel the deposition of Dycora Transitional Health— Weber Oaks LLC's (“Dycora—Weber Oaks”) person most knowledgeable. Dycora— Weber Oaks shall produce the person most qualified to testify regarding categories 1‐16. (Code Civ. Proc., § 2025.450, subd. (a).) To grant plaintiff's motion to compel...

Excerpt: ...ng judge prior to filing any new litigation in the courts of this state in propria persona. (Code Civ. Proc. § 391.7.) Explanation: “The vexatious litigant statutes were created to curb misuse of the court system by those acting in propria persona who repeatedly file groundless lawsuits or attempt to relitigate issues previously determined against them.” (Goodrich v. Sierra Vista Regional Medical Center (2016) 246 Cal.App.4th 1260, 1265.) Th...

Excerpt: ...he presiding judge prior to filing any new litigation in the courts of this state in propria persona. (Code Civ. Proc. § 391.7.) Explanation: “The vexatious litigant statutes were created to curb misuse of the court system by those acting in propria persona who repeatedly file groundless lawsuits or attempt to relitigate issues previously determined against them.” (Goodrich v. Sierra Vista Regional Medical Center (2016) 246 Cal.App.4th 1260,...

Excerpt: ...against plaintiff Maciej Kopacz, M.D. Sanctions are ordered to be paid by plaintiff within 20 days of the date of this order, with the time to run from the service of this minute order by the clerk. Plaintiff shall serve responses, without objections, to defendant Fresno Community Hospital and Medical Center's Special Interrogatories, Set One, Request for Production of Documents, Set One, and Request for Nature and Amount of Damages no later than...

Excerpt: ... service by the clerk of the minute order. New allegations in the First Amended Complaint are to be set in boldface type. The court sustains the demurrer to the second cause of action without leave to amend. The court grants the motion to strike the prayer for pre‐judgment interest and punitive damages, in light of plaintiff's notice of non‐opposition, without leave to amend. The court grants the request for judicial notice of the tort claim ...

Excerpt: ...ponent to personally attend the deposition and testify, as well as to attend any court session to consider any issue arising out of (inter alia) the deponent's refusal to be sworn, as here. (Code Civ. Proc., § 2020.220.) If a deponent on whom a deposition subpoena has been served fails to attend a deposition, the court may impose on the deponent sanctions described in Code of Civil Procedure section 2020.240. (Code Civ. Proc., §2025.440, subd. ...

Excerpt: ...esponses to Form Interrogatories (Set Two), Special Interrogatories (Set One), Request for Production of Documents (Set Two). To grant defendant Smart & Final's motion for an order deeming Requests for Admissions admitted. The truth of the matters specified in the Requests for Admissions, Set One, are to be deemed admitted unless plaintiff Laura Mendoza serves, before the hearing, a proposed response to the Requests for Admission that is in subst...

Excerpt: ... 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.) Courts are bound to apply a policy of great liberality in permitting amendments to the complaint “at any stage of the proceedings, up to and including trial.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) If plainti...

Excerpt: ...e in boldface. To deny defendants' motion to strike each cause of action of the First Amended Complaint. Explanation: On April 7, 2021, plaintiff filed suit against defendants alleging breaches of a leaseoption agreement of agricultural property. Plaintiff pled six causes of action: (1) breach of contract of lease of agricultural property; (2) breach of contract of purchase of a residence; (3) breach of implied covenant of good faith and fair dea...

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: ...; 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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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...

Excerpt: ...onal limit for unlimited civil cases. (Code Civ. Proc. §§ 85; 403.040.) The hearing on the reclassification motion will be held on September 27, 2022, at 3:30 p.m. in Department 501. Both parties' briefs regarding the reclassification issue shall be filed and served by the close of business on September 20, 2022. Explanation: Plaintiff Viking Insurance Company of Wisconsin has moved for summary judgment on the ground that defendant has been dee...

Excerpt: ... well as the agreed upon lower administration costs. Explanation: A settlement of a class action requires court approval after a hearing. (Cal. Rules of Court, rule 3.769(a).) The approval of the settlement also requires certification of a preliminary settlement class. (Cal. Rules of Court, rule 3.769(d).) Certification of the Class: The court has already granted certification of the class. Fairness of the Settlement: Settlements preceding class ...

Excerpt: ...ses having been served, defendant moved for and obtained a deemed admissions order, which was entered on August 1, 2018 – four years ago. Defendant remained in pro per until November 27, 2018, when he retained the offices of Robert Cervantes to represent him in this matter. Defendant is now represented by Roger Bonakdar, who states that he first learned of the deemed admissions order apparently in June 2022. On June 23, 2022, defendant filed th...

Excerpt: ... Amended Complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: First Cause of Action: The first cause of action attempts to state a claim for discrimination in violation of the Fair Employment and Housing Act (FEHA) based on plaintiff's age at the time of his termination. However, plaintiff does not allege any facts in the first cause of action to support his claim that he was termin...

Excerpt: ...e a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) To grant CHCC's motion to strike the portions of the First Amended Complaint (“FAC”) as it pertains to punitive damages and attorney's fees pursuant to Code of Civil Procedure, section 1021.4, specifically: (1) paragraphs 33, 41, 46, and 65; (2) page 10, lines 5‐7; (3) the prayer on page 17, lines 17‐18; and (4) the prayer on page 17, lines 19‐ 21, with leave to amend. Explan...

Excerpt: ...nt, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: Defendant Fresno Unified School District (FUSD) brings this demurrer to the fourth, fifth, sixth and seventh causes of action pursuant to Code of Civil Procedure section 430.10 for failure to state a cause of action against FUSD. The causes of action at issue are intentional torts and include allegations that FUSD ...

Excerpt: ...posing Monetary Sanctions 3) by Defendant Paul Speece, M.D., for an Order Compelling Plaintiff Maciej Kopacz, M.D., to Respond to Form Interrogatories, Special Interrogatories, Request for Production, and Request for Nature and Amount of Damages, and Imposing Monetary Sanctions Tentative Ruling: To grant defendant's motion to deem requests for admissions admitted and to award sanctions in the amount of $480 against plaintiff Maciej Kopacz, M.D., ...

Excerpt: ...ent also requires certification of a preliminary settlement class. (Cal. Rules of Court, rule 3.769(d).) Certification of the Class: The court has already granted certification of the class. Fairness of the Settlement: Settlements preceding class certification are scrutinized more carefully to make sure that absent class members' rights are adequately protected. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240.) The court has a fid...

Excerpt: ...21, against James Hinson (“James”) and Does 1‐20. James filed an Answer to the Complaint on March 12, 2021. On November 18, 2021, plaintiff filed an Amendment to the Complaint, substituting Jesse Hinson (“Jesse”) for Doe 1. A party may amend its pleading once without leave of court at any time before an answer or other responsive pleading is filed. (Code Civ. Proc., § 472.) Except where section 472 applies, amendment of any pleading re...

Excerpt: ...al burden of production to make a prima facie showing that no triable issue of material fact exists. Only when the initial burden of production is met, does the burden shift to the responding party to demonstrate the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850‐51; see also Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 107.) A defendant moving for summary judgment must ...

Excerpt: .... Problems with the vehicle ensued, forming the basis of the instant complaint for damages. Plaintiff brought five causes of action against defendant FCA US, LLC (“defendant”) for express and implied violations of warranties afforded through the Song‐Beverly Act. Defendant moves for an order compelling arbitration pursuant to an arbitration clause in a lease agreement made between plaintiff and a dismissed party, Fresno Chrysler Dodge Jeep ...

Excerpt: ...nez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The court engages in a two‐step process in determining whether an action is subject to the anti‐SLAPP statute: first, the court decides whether defendant has made a threshold showing that the challenged cause of action is one arising from protected activity, by demonstrating that the facts underlying plaintiff's complaint fit one of the categories set forth in section 425.16, s...

Excerpt: ...ore 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.R. Westlaw, 2017) Section 7:3: “The parties' representation of an...

Excerpt: ...f action following defendant's deposition testimony and expert Dunnett's medical analysis. Motions for leave to amend the pleadings are directed to the sound discretion of the judge. “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).) Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit. Thus, th...

Excerpt: ...0602.6.) Any briefing to be submitted by defendant addressing the issues herein must be filed and served no later than Wednesday, July 27, 2022. All papers in response to defendant's briefings must be filed and served no later than Friday, August 5, 2022. Alternatively, the court will take the motion off calendar if defendant pays the initial filing fee of $435 prior to Wednesday, July 27, 2022. Explanation: Plaintiff seeks reconsideration of an ...

Excerpt: ...ttlement also requires certification of a preliminary settlement class. (Cal. Rules of Court, rule 3.769(d).) Certification of the Class: The court has already granted certification of the class. Fairness of the Settlement: Settlements preceding class certification are scrutinized more carefully to make sure that absent class members' rights are adequately protected. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240.) The court has ...

Excerpt: ...e first, second, third, fifth, sixth and eighth causes of action, with plaintiff Ana Lewis (“Mrs. Lewis”) granted 10 days' leave to file a First Amended Complaint. (Code Civ. Proc., § 4301.10, subd. (e).) All new allegations shall be in boldface type. The time in which the Complaint may be amended will run from service of the order by the clerk. Explanation: In this action plaintiffs sue all involved in a real estate transaction in which Mrs...

Excerpt: ...d. (Ibid.) Explanation: Defendants FCA and Selma Chrysler move for judgment on the pleadings as to the sixth cause of action for fraudulent concealment and the seventh cause of action for negligent failure to repair, as well as the punitive damage claim. Their primary contention is that the “economic loss rule” bars plaintiff's tort claims, and therefore plaintiff's fraud and negligence causes of action do not state valid causes of action. Al...

Excerpt: ...bject of the court's order dated October 28, 2021. (Code Civ. Proc. § 2031.300, subd. (c).) Monetary sanctions in the amount of $1,282.20 are ordered against defendants, jointly and severally, and payable no later than 20 court days from the date of this Order. Explanation: The Notice of Motion indicates plaintiff is making its motion pursuant to Code of Civil Procedure section 2031.300, subdivision (c), which governs the failure to respond to r...

Excerpt: ...ion in which it is alleged that two or more parties are joint tortfeasors or co‐obligors on a contract debt shall be entitled to a hearing 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), emphasis added.) “The issue of the g...

Excerpt: .... (1967) 66 Cal.2d 738, 746.) An order staying discovery until determination of criminal charges allows plaintiff to prepare his or her action “while alleviating [defendant's] difficult choice between defending either the civil or criminal case.” (Pacers, Inc. v. Super. Ct. (1984) 162 Cal.App.3d 686, 690.) An objecting party is generally entitled to a stay of discovery in the civil action until disposition of the criminal matter. (Ibid.) Here...

Excerpt: ... 1‐15, 17 and 19. The court intends to enter defendant Cooper Tire & Rubber Company's (“Cooper Tire”) proposed protective order. Cooper Tire shall submit a proposed order consistent with the court's order and the terms of the proposed stipulated protective order set forth in Exhibit “A” of the Declaration of David T. McCann, within 10 days of the date of this order, and serve further responses in full compliance with Code of Civil Proce...

Excerpt: ...n their claims for violation of the California Superfund Act (also known as the Carpenter‐Presley‐Tanner Hazardous Substances Account Act or the HSAA), nuisance, trespass and declaratory relief because there is no evidence that Delta or Cordes ever released hazardous substances onto the property when they operated the dry cleaning business there. They note that plaintiffs' discovery responses do not point to any direct evidence showing that d...

Excerpt: ...nd 3.1113.) The brief in support of the motion is 46 pages long, which is about three times the page limit for points and authorities briefs. (Cal. Rules of Court, rule 3.1113(d).) Plaintiff's brief also does not contain any cognizable legal argument or citations to authorities that would support his contentions. It is simply a copy of the second amended complaint with random citations to documents and deposition testimony, without any explanatio...

Excerpt: ...mpel further responses to the special interrogatories, set one, numbers 14, 42, 43, 45 and 57. To deny the motion to compel further responses to interrogatories numbers 40, 41 and 44. (Code Civ. Proc. § 2030.300.) To grant plaintiff's motion to compel further responses to form interrogatories, set one, number 12.1. (Code Civ. Proc. § 2030.300.) To grant plaintiff's motion to compel further responses to document requests, set one, numbers 1, 3, ...

Excerpt: ...omplaint for damages. Plaintiffs brought two causes of action against defendant ‐ for express and implied violations of the SongBeverly Act regarding warranties. Compel Arbitration Defendant moves to compel arbitration on an arbitration clause in a sales contract made between plaintiffs and a non‐party, Selma Honda. A trial court is required to grant a motion to compel arbitration “if it determines that an agreement to arbitrate the controv...

Excerpt: ...vil Procedure section 877.6, “[a]ny party to an action in which it is alleged that two or more parties are joint tortfeasors or co‐obligors on a contract debt shall be entitled to a hearing 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...

Excerpt: ...ision is made by the administrator in the probate proceeding to accept or reject plaintiff's creditor claim. 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 a First Amended Complaint are to be set in boldface type. Explanation: Demurrer to the First Cause of Action for Breach of Contract: Defendants Morris S. Srabia...

Excerpt: ...nting verified responses from defendant RJMS Corporation DBA Toyota Material Handling of Northern California to form interrogatories, sets one and two, special interrogatories, set one, and request for production of documents, set one, moot in light of the service of verifications on May 20, 2022. To deny the motion for an order deeming matters in requests for admission be admitted by defendant RJMS Corporation DBA Toyota Material Handling of Nor...

Excerpt: ...will be heard on Thursday, June 9, 2022, at 3:30 p.m. in Dept. 501. Explanation: With regard to the first, second, third and fourth causes of action for retaliation, racial discrimination, age discrimination, and national origin discrimination under FEHA, defendant contends that plaintiff has no evidence that he was ever subject to an “adverse employment action”, which is an essential element of his prima facie claims for retaliation and disc...

Excerpt: ...ifornia, the procedure for enforcing a forum selection clause is a motion to stay or dismiss for forum non conveniens ... , but a motion based on a forum selection clause is a special type of forum non conveniens motion. The factors that apply generally to a forum non conveniens motion do not control in a case involving a mandatory forum selection clause.' When a case involves a mandatory forum selection clause, it will usually be given effect un...

Excerpt: ...nt Mark Alson, M.D. moves for summary judgment based on the declarations of a medical expert, Fred S. Vernacchia, M.D., who has opined that Dr. Alson'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, knowledg...

Excerpt: ...Athenix Body Sculpting Institute (together “Athenix”), on any cause of action. The time in which the Complaint may be amended will run from service by the clerk of the minute order. Explanation: Plaintiffs seek leave to amend to add claims and prayers for punitive damages against all defendants pursuant to Code of Civil Procedure section 425.13. Plaintiffs' motion must be filed within two years after the original complaint was filed, or nine ...

Excerpt: ...inst defendant Christopher Allen Moore and his attorneys, the Law Offices of Lynn M. Yempuku, 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. Defendant Christopher Allen Moore shall serve a verification to the responses already made to plaintiff Victor Moreno's Form Interrogatories, Set One, Special Interrogatories, Set One, and the Request for Produ...

Excerpt: ...m CIV‐100, as well as a supplemental points and authorities. Previously, the court noted, among other issues, that no evidence or argument was given to establish the values sought in general damages; and the calculation for attorney's fees, while supported by factors required by local rules, exceed the allowable amount on a default judgment based on an action on contract's Civil Code section 1717 fees provision (Fresno Super. Ct. Local Rules, A...

Excerpt: ...l based solely on the agreement or stipulation of the parties.” (Cal. Rules of Court, rule 2.551(a).) Also, the court must make certain express findings in order to seal records. Specifically, the court must find that the facts establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overridin...

Excerpt: ... requires certification of a preliminary settlement class. (Cal. Rules of Court, rule 3.769(d).) Certification of the Class: The court has already granted certification of the class. Fairness of the Settlement: Settlements preceding class certification are scrutinized more carefully to make sure that absent class members' rights are adequately protected. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240.) The court has a fiduciary r...

Excerpt: ...n Plaintiff's counsel attributes the untimely opposition to his “clerical error.” Defendants were able to file a reply and do not assert prejudice. Therefore, the opposition was considered in determining this motion. (See Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202.) Defendants' reply notes that the requested amount is now $9,077.55, and requests that it be taxed and reduced to $4,759.22. Allowable Costs Generally Ite...

Excerpt: ...rney of record, jointly and severally, payable within 30 days of the date of this order, with the time to run from the service of this minute order by the clerk. The request for an order compelling plaintiff's answers or productions to deposition questions in defendant's reply is not considered. If defendant seeks such relief, defendant must file a motion to compel pursuant to Code of Civil Procedure section 2025.480. In the event of a timely req...

Excerpt: ...oral argument, such argument will be entertained on May 12, 2022, at 3:30 p.m. in Department 501. Explanation: The court shall issue a writ of possession if it finds that the plaintiff's claim is probably valid and the other requirements for issuing the writ have been satisfied. (Code Civ. Proc. §§ 512.040, subd. (b); 515.060, subd. (a)(1).) Among other things, the plaintiff's application must show the basis of the plaintiff's claim, that the p...

Excerpt: ...nt, such argument will be conducted on May 12, 2022, at 3:30 p.m. in Department 501. Explanation: A special motion to strike provides a procedural remedy to dismiss nonmeritorious 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); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The court engages in a two‐step process in...

Excerpt: ...troduction “The 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).) There are very few cases discussing section 2699, and none discuss the standards under which a court is to assess a settlement. Nor has the legislature provided any structure or stand...

Excerpt: ...ant, but to require plaintiff to pay $240 for motion fees to the clerk (in addition to the $60 for the motion fees already paid) for the correct total motion fee of $300 (5 motions x $60 each). The additional filing fees must be paid on or before May 25, 2022. Defendant Hart Family Trust is ordered to serve verified responses, without objections, to plaintiff Terry L. Thelen's Form Interrogatories, Set One, Special Interrogatories, Set One, Reque...

Excerpt: ...and Community Regional Anesthesia Medical Group, Inc. (CRAMG). (Code Civ. Proc. § 1281.2.) To stay the civil action on the cross‐claims until the resolution of the arbitration. (Code Civ. Proc. § 1281.4.) If there is a timely request for oral argument, such argument will be conducted on May 4, 2022, at 3:30 p.m. Explanation: Pursuant to California Code of Civil Procedure section 1281.2, On petition of a party to an arbitration agreement alleg...

Excerpt: ...complexes, two limited liability companies and two limited partnerships. On August 2, 2021, plaintiffs filed their first motion to compel further production of financial documents. On October 13, 2021, the court denied the motion without prejudice due to a lack of showing of relevance. Plaintiffs now bring the present second motion to compel further production. Plaintiffs incorrectly conclude this court earlier denied plaintiffs' motion owing to ...

Excerpt: ....10, subd. (e).) To grant, with leave to amend, defendants' motion to strike the prayer for attorney's fees under the tort of another doctrine, on page 11, lines 2‐4. To deny defendants' motion to strike the prayer for attorney's fees qua attorney's fees, on page 10, line 27. To deny defendants' motion to strike the portions of the First Amended Complaint as it pertains to punitive damages, specifically paragraphs 31 and 36, and the prayer on p...

Excerpt: ...n May 4, 2022, at 3:30 p.m. Explanation: Demurrer A party may file a general demurrer on claims that “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e); Estate of Moss (2012) 204 Cal.App.4th 521, 535 [“‘A demurrer can be utilized where the complaint itself is incomplete ….' [Citations.]”].) Although in ruling on a demurrer the complaint is liberally construed, “[t...

Excerpt: ...rth America, Inc.'s person most knowledgeable and custodian of records to attend his or her deposition, and to produce documents pursuant to the demand for production of documents served with the deposition notice. (Code Civ. Proc. § 2025.450.) To deny plaintiffs' request for sanctions against defendant. (Code Civ. Proc. § 2025.450(g)(1).) To deny plaintiff's motion to compel Lithia Nissan of Clovis's person most qualified and Timothy Bowden, T...

Excerpt: ...rcement of valid arbitration agreements.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) “When presented with a petition to compel arbitration, the initial issue before the court is whether an agreement has been formed.” (Diaz v. Sohnen Enterprises (2019) 34 Cal.App.5th 126, 129.) In addition, arbitration is a “ ‘matter of consent, not coercion,'” and “ ‘a party cannot be required to submit to...

Excerpt: ...of this order. Explanation: “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 ordinarily possessed and exercised by members of the medical profession under similar circumstances. ‘ “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents t...

Excerpt: ...rder by the clerk. Explanation: Contending that the Complaint alleges insufficient facts to state a claim for punitive damages, defendants move to strike the following from the Complaint: Item 1: Page 3, section 14, paragraph (2), which states: "Plaintiff prays for judgment for costs of suit for such relief as is fair, just and equitable; and for punitive damages." Item 2: Page 5, section Prem.L.‐3., which states: "Count Two – Willful Failure...

Excerpt: ...ries, Set One, as to Request Nos. 2.12, 2.13, 4.1, 6.3, 6.4, 6.5, 10.1, 10.3 and 12.1. As to Request No. 17.1, defendant's request to compel plaintiff's supplemental response is denied. To grant defendant's motion to compel plaintiff's supplemental responses to defendant's Request for Admission, Set One, Requests Nos. 1, 2, 12 and 15. Plaintiff shall serve verified supplemental responses in full compliance with Code of Civil Procedure, sections 2...

Excerpt: ...gainst a general demurrer a complaint will be liberally construed[…]; that any mere ground of special demurrer for uncertainty will be resolved in support of the complaint and the demurrer overruled, when the necessary facts are shown to exist, although inaccurately or ambiguously stated, or appearing only by necessary implication.” (Hunter v. Freeman (1951) 105 Cal.App.2d 129, 133; see Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App....

Excerpt: ...duct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.” (Code Civ. Proc., § 128, subd. (a)(5).) Substantial Relationship of Representation: Cases disqualifying attorneys for receiving confidential information in the absence of an attorney‐client relationship, as is this case, are generally limited to situations where the information is relev...