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...