Excerpt: ...tive, summary adjudication on the Complaint filed by Plaintiff Felix Rocha. Mr. Rocha filed a complaint on January 16, 2018 alleging injuries from a motor vehicle accident and general negligence. The injuries were alleged to have occurred on January 18, 2016 and stemmed from the negligent operation of one of Defendant Mid Valley Disposal's fork lift trucks by co‐Defendant Toby Taylor. To obtain summary judgment, “all a defendant needs to do i...

Excerpt: ...mmary judgment order. Explanation: As the moving parties, defendants bear the initial burden of proof to show that plaintiff cannot establish one or more elements of his causes of action or to show that there is a complete defense. (Code Civ. Proc. § 437c(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 ...

Excerpt: ...dants/petitioners are correct that Code of Civil Procedure section 1290.6 requires a party responding to a petition to compel arbitration to serve and file its response within 10 days after service, the Court will consider plaintiffs/respondents' opposition on its merits, as no prejudice to defendants/petitioners is apparent. (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 847; see also Hoover Community Hotel Development Corp. v....

Excerpt: ...n of bullying, harassment and discrimination based on race by coworker Joyce Kennedy and supervisor Sharon Murphy. Plaintiff was terminated following an investigation into a potential threatening or harassing email sent by plaintiff to Murphy. Plaintiff contends that the termination was pretextual. Defendants move for summary adjudication of plaintiff's fifth cause of action for wrongful termination in violation of public policy. When a plaintiff...

Excerpt: ...s motion and all other proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby. (Code Civ. Proc., § 916, subd. (a).) By operation of law, this Court lacks jurisdiction to hear the motion and therefore vacates the hearing. Once the appeal is no longer pending, the moving party may contact the law and motion clerk to reschedule the hearing on the motion. Explanation: On April...

Excerpt: ...the completion of arbitration. Explanation: The parties have agreed to submit plaintiff's claims to arbitration pursuant to a Dispute Resolution Agreement. The parties are in disagreement as to the interpretation of paragraph 5 of the Agreement, and have stipulated to have the court resolve the issue. Paragraph 5 provides: Arbitration will be conducted within the county in which the employee works for CMC or last worked for CMC unless all parties...

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

Excerpt: ...spect to causes of action: four (breach of oral contract), five (breach of implied‐infact), and six (promissory estoppel). To deny defendant's motion to strike plaintiff's prayer for costs. To deny defendant's motion to strike plaintiff's prayer for restitution. Plaintiff is granted ten days' leave to amend. All changes must be in bold. The time in which an amendment may be filed will run from service by the clerk of the minute order. Explanati...

Excerpt: ...Costs are taxed by $53,855.58. Costs awarded to Triangle Truck against the Srabians therefore total $7,278.83. Explanation: The parties to this case filed cross‐motions to strike and/or tax costs and for attorney's fees after a jury trial. By order dated July 31, 2019, the Court ruled on all the motions except for the Srabians' motion to strike and/or tax the costs of Triangle Truck. In its order, the Court noted that “[w]here co‐parties jo...

Excerpt: ...fendant Richard Greene has moved to vacate and set aside the default entered in this case on February 15, 2019. Defaults are disfavored and any doubts existing as to setting aside a default should be resolved in favor of a hearing on the merits. (Berman v. Klassman (1971) 17 Cal.App.3d 900, 910.) Reversal is particularly appropriate where relieving the default will not seriously prejudice the opposing party. (Elston v. City of Turlock (1985) 38 C...

Excerpt: ...), (f).) To grant the motion to strike the allegations and prayer regarding punitive damages from the cross‐complaint. (Code Civ. Proc. §§ 435, 436.) To grant the motion to strike the conspiracy claim against plaintiff's counsel and her law firm, for failure to comply with Civil Code section 1714.10 before filing the claim. To grant leave to amend. To deny both parties' requests for sanctions against each other. (Code Civ. Proc. §§ 128.5, 1...

Excerpt: .... (1953) 38 Cal.2d 273. There, a couple was photographed by an employee in an affectionate pose at the LA Farmer's Market, and the photograph was published with an accompanying article in Ladies Home Journal, without their permission. [T]he caption under the picture describes it as “love at first sight” and the article says such love is based on 100 per cent sex. It is not unreasonable to believe such would be seriously humiliating and distur...

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

Excerpt: ... court days of service of this order. A final proposed judgment is to be presented to the Court within ten (10) court days of service of this order. Explanation: Pursuant to the Stipulation and Order filed June 20, 2019, this case is set for several matters pending from previous hearings before this Court. For the reasons stated below, only the Order to Show Cause re: Dismissal for Failure to Join Indispensable Parties (and the Order to Show Caus...

Excerpt: ...ken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b); Lorenz v. Commercial Accept. Ins. Co. (1995) 40 Cal.App.4th 981, 989.) In other words, to secure relief, the moving party must present a reasonable excuse as to why she was prevented from presenting her case to the court. (See Wilcox v. Ford (1988) 206 Cal.App.3d 1170, 1176; Guenter v. Lomas & Nettleton Co. (198...

Excerpt: ...iff to call for oral argument. If defendant does not call for oral argument, this Tentative Ruling will be adopted without continuance. Explanation: Proof of Service Issue: One of the arguments plaintiff made was that the motion was not timely served. The original proof of service attached to the Notice of Motion attempts to indicate personal service of the papers on May 28, 2019 – which would be two days before the 75‐day deadline given in C...

Excerpt: ... days of the date of service of this order. Explanation: Defendants argue that plaintiff expressly assumed the risk of being hit by a foul ball when he purchased his ticket for the game. The ticket contained an express release which stated, “Holder of this ticket assumes all risks incidental to the game of baseball, including specifically (but not exclusively) the danger of being injured by thrown or batted balls. Holder agrees that the Fresno ...

Excerpt: ...�The court may, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading[.]” (Code Civ. Proc. §473(a)(1).) “[L]eave to amend a pleading should be liberally granted as long as there is no timeliness problem under a statute of limitations or prejudice to the opposing party. [Citations.]” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240; Glaser v. Meyers (1982) 137 Cal....

Excerpt: ...t to the applicable Local Rules and the court will reset the trial at that time. Explanation: “The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading.” (Code Civ. Proc. § 473; see also, § 576.) There is generally a strong policy in favor of allowing a plaintiff to amend the complaint. (Glaser v. Meyers (1982) 137 Cal.App.3d 770, 776‐777.) Judicial policy favors resolution of all d...

Excerpt: ... 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 uncontested motion for class certification does not relieve the Court of the duty of determining whether certification is appropriate.” The case so requiring is Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 620 (“Amchem”): “Confr...

Excerpt: ...nt public entity for collateral source payments paid or obligated to be paid for services or benefits that were provided prior to the commencement of trial.” (Gov. Code, § 985, subd. (b).) A “collateral source payment” is money “paid or obligated to be paid” by “private medical programs, health maintenance organizations, state disability, unemployment insurance, private disability insurance, or other sources of compensation similar t...

Excerpt: ...efendants demur to the first, second, and third causes of action in the complaint on the ground that there is another action pending between the same parties on the same cause of action. (Code Civ. Proc. § 430.10, subd. (c).) They claim that some of the plaintiffs in the present action have also brought the same construction defect claims in another action that was previously filed in Fresno Superior Court against the same defendants. (See Defen...

Excerpt: ...ailure to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).) To deny the motions to strike the allegations and prayers for punitive damages and attorney's fees. To grant leave to amend, except as stated below. Plaintiffs shall serve and file their second amended complaint within 10 days of the date of service of this order. All new allegations shall be in boldface. Explanation: A. Demurrer Untimely Opp...

Excerpt: ...th of all material allegations and a Court will “give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context.” (People ex re. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) He...

Excerpt: ...n: Attorney's Fees While the fee awards should be fully compensatory, the trial court's role is not to simply rubber stamp the defendant's request. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133; Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 361.) Rather, the court must ascertain whether the amount sought is reasonable. (Robertson v. Rodriguez, supra, 36 Cal.App.4th at p. 361.) The party seeking attorney's fees has the burden of e...