Excerpt: ...lass counsel will breach the fiduciary obligations they owe to the absent class members. As a result, such agreements must withstand an even higher level of scrutiny for evidence of collusion or other conflicts of interest than is ordinarily required under Rule 23(e) before securing the court's approval as fair." (Koby v. ARS National Services, nc. (9th Cir. 2017) 846 F. 3d 1071, 1079.) "[lln the final analysis it is the Court that bears the resp...

Excerpt: ...urth causes of action, with leave to amend. To sustain the demurrer to the fifth cause of action, without leave to amend. Plaintiff shall serve and file a First Amended Complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface. Explanation: On June 30, 2022, plaintiff filed suit against defendants California Department of State Hospitals ("CDSH"), Robert Withrow and Brandon Price for five causes...

Excerpt: ...of the date of mailing of this order. Explanation: Plaintiff's first amended complaint fails to allege that she complied with the requirements of the Government Tort Claims Act, and therefore it fails to state any valid causes of action against defendants West Park Elementary School District and Kimberly Vivenzi. "[Government Codel Section 905 requires the presentation of 'all claims for money or damages against local public entities,' subject to...

Excerpt: ...r an Order Compelling Plaintiff's Further Responses to Requests for Admission Tentative Ruling: To grant in part defendant's motion to compel plaintiff to provide further responses to Form Interrogatories — General, and order plaintiff to provide further responses to Nos. 2.11(b), 8.5, 8.6, 8.7, 8.8. To deny the motion as to Nos. 2.3, 2.11(a), 8.4, 11.1, 11.2. To grant in part defendant's motion to compel plaintiff to provide further responses ...

Excerpt: ...ial fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., 5437c, subd. (c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) "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., S 437c subd. (f)(l); see also Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97 [piecemeal...

Excerpt: ...oval, the court must conduct an inquiry into the fairness of the proposed settlement." Subsection (h) states: "If the court approves the settlement agreement after the final approval hearing, the court must make and enter judgment. The judgment must include a provision for the retention of the court's jurisdiction over the parties to enforce the terms of the judgment. The court may not enter an order dismissing the action at the same time as, or ...

Excerpt: ...laint within 20 days of service of the order by the clerk. To deny the moton to strike except as it relates to plaintiffs' claim for relief under Code of Civil Procedure section 1021.4, as to Community Hospital of Central California only. Explanation: In deciding a demurrer, the test is whether the plaintiff has succeeded in stating a cause of action - the court does not concern itself with the issue of plaintiff's possible difficulty or inabilit...

Excerpt: ... Bourn Family LLC's motions to compel for Form Interrogatories—Economic Litigation (Set One), Form Interrogatories—General (Set One), Special Interrogatories (Set One), and Request for Production (Set One). To grant defendant Bourn Family LLC's request to deem Requests for Admissions (Set One) admitted. The truth of the matters specified in the Requests for Admissions are to be deemed admitted unless plaintiff Valerie Gonzales serves, before ...

Excerpt: ...iminary 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 uncontested motion for...

Excerpt: ...ent can be amended and the distribution of any cy pres funds can be ordered. as to the amount paid to class members must be filed on or before March 5, 2024. Explanation: 1. Class Certification The court has already granted the motion for preliminary approval and certification of the class and found that the class is sufficiently numerous and ascertainable to warrant certification for the purpose of approving the settlement. In addition, there do...

Excerpt: ...d 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, 93-95.) "Class certification requires proof (1) ofa sufficiently numerous, ascertainable class, (2) of a well-defined community of interest, and (3) that certification will provide ...

Excerpt: ...e at bench on April 9, 2021. "After six months from entry of default, a trial court may still vacate a default on equitable grounds even if statutory relief is unavailable." (Rappleyea v. Campbell, supra, 8 Cal.4th 975, 981 (Rappleyea).) Equitable grounds include extrinsic fraud and mistake. (Ibid.; Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 736 (Aldrich).) Although "the terms 'fraud' and 'mistake' have been given a broa...

Excerpt: ...od moves for summary judgment, contending that it owed no duty to plaintiff and thus it cannot held liable for negligence. "To establish a cause of action for negligence, the plaintiff must show that the 'defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury.' Recovery for negligence depends as a threshold matter on the existence of a legal duty of care." (Br...

Excerpt: ...y of the events leading up to this continuation is as follows: On June 30, 2022, defendant filed a demurrer to plaintiff's original Complaint on the grounds that it failed to state facts sufficient to constitute a cause of action. On August 24, 2022, plaintiff filed the instant motion for summary adjudication and the hearing was originally set for January 25, 2023. On January 18, 2023, the court issued its adopted tentative ruling sustaining the ...

Excerpt: ...t Beau Pennington only. Plaintiff is granted 10 days' leave to file the Second Amended Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: Non-solicitation/Non-compete Agreements and Trade Secrets Business and Professions Code section 16600 states, "Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful prof...

Excerpt: ...me with certain warranties. Problems with the vehicle ensued which form the basis of the instant complaint for damages. Plaintiffs brought seven causes of acton against defendant Nissan North America, Inc. for negligent repair and failure to replace the vehicle. All of the causes of action against defendant comprise alleged breaches of Civil Code, section 1790 et seq. regarding consumer warranties, and fraud by omission that defendant was aware o...

Excerpt: ... has made may petition the court to confirm, correct or vacate the award." (Code Civ. Proc., S 1285.) "A response to a petition under this chapter may request the court to dismiss the petition or to confirm, correct or vacate the award." (Code Civ. Proc„ S 1285.2.) "If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless in accordan...

Excerpt: ...t for Production of Documents, Set One (1), which Defendant propounded on the Plaintiff June 24, 2022, within 10 days of service of this Order. To order Plaintiff to provide objectionless and verified responses to Form Interrogatories, Set One (1), which Defendant propounded on the Plaintiff on June 24, 2022, within 10 days of service of this Order. To order Plaintiff to provide objectonless and verified responses to Special Interrogatories, Set ...

Excerpt: ...he motion for summary judgment is untimely, "highly prejudicial," and violates due process. (Opp. at p. 3:17.) However, the authority offered as support for proposition that - Gamble v. Los Angeles Dept. of Water and Power (2W2) 97 Cal.App.4th 253 (Gamble) - specifically conditioned its reversal on the record's absence of a suggestion that the judge presiding over the summary judgment motion was unavailability. (ld. at p. 259.) Here, in light of ...

Excerpt: ... be amended will run from service of the order by the clerk. All new allegations shall be in boldface font. Explanation: On December 29, 2016 plaintiff purchased a new 2016 Hyundai Veloster from Lithia Hyundai of Fresno, which vehicle was manufactured or distributed by defendant Hyundai Motor America ("HMA"). Problems with the vehicle ensued, specifically with the 1.6L Gamma engine, and this "lemon law" action was filed on April 13, 2021, against...

Excerpt: ... to file the First Amended Cross-complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: Cross-complaint Generally For a cross- complaint, claims against the plaintiff can be asserted regardless of the subject matter relationship; however, for claims against anyone else, the claims must relate to the subject matter or transaction alleged in the plaintiff's compla...

Excerpt: ... 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); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) “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....

Excerpt: ...rth, fifth and sixth causes of action with leave to amend. (Code Civ. Proc. § 430.10, subd. (e).) Plaintiff is granted 20 days' leave to file a Second Amended Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. To find moot defendant Fresno Unified School district's demurrer to the eighth cause of action. Explanation: Motion to Strike “It is the rule that when a trial ...

Excerpt: ... of Civil 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...

Excerpt: ...n of the cross-complaint. Explanation: 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(c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) The issue to be determined by the trial court in consideration of a motion for summary judgment is whether or not any facts have been presented which give rise to a triable ...

Excerpt: ...of judgment pursuant to Code of Civil Procedure, section 724.050. If a money judgment has been satisfied, the judgment debtor, the owner of real or personal property subject to a judgment lien created under the judgment, or a person having a security interest in or a lien on personal property subject to a judgment lien created under the judgment may serve personally or by mail on the judgment creditor a demand in writing that the judgment credito...

Excerpt: ...ansaction, plaintiff signed a Retail Installment Sales Contract (“RISC”) which contained an arbitration clause. Problems with the vehicle ensued, and this “lemon law” action was filed on February 4, 2022, against Nissan only. The Complaint alleges the following causes of action: (1) Violation of the Song-Beverly Act – Breach of Express Warranty; (2) Violation of the Song-Beverly Act – Breach of Implied Warranty; (3) Violation of the S...

Excerpt: ...ant the motions to stay. This action is stayed pending the outcome of the appeals of the judgment of the underlying matter, Nicholas Merlo v. Pristine Surgery Center, Inc., Fresno Superior Court Case No. 18CECG03026, consolidated under Appeal No. F083804. To grant defendants' requests for judicial notice. To take the demurrer and motion to compel further responses off calendar in light of the ruling on the motions to stay. The parties shall infor...

Excerpt: ...terms of Code of Civil Procedure section 474 have not been complied with, the purported defendant has not been named as such in the complaint. A service upon one not named in a complaint does not confer jurisdiction to proceed upon the complaint against him, and a motion to quash is proper.” (Maier Brewing Co. v. Flora Crane Service, Inc. (1969) 270 Cal.App.2d 873, 875; see also McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App...

Excerpt: ...), which Plaintiff propounded on the Defendant on December 17, 2021, within 10 days of service of this Order. To order Defendant to provide objectionless and verified responses to Form Interrogatories, Set One (1), which Plaintiff propounded on the Defendant on December 17, 2021, within 10 days of service of this Order. To order that the matters set forth in Plaintiff's Request for Admissions, Set One (1), which Plaintiff propounded on Defendant ...

Excerpt: ..., plaintiff signed a Retail Installment Sales Contract (“RISC”) which contained an arbitration clause. Problems with the vehicle ensued, and this “lemon law” action was filed on 2/23/21, against both Clovis Chrysler and FCA. The Complaint alleges the following causes of action: (1) Violation of Subdivision (d) of Civil Code section 1793.2; (2) Violation of Subdivision (b) of Civil Code section 1793.2; (3) Violation of Subdivision (a)(3) o...

Excerpt: ...0, naming all defaulted defendants, and dismissing the Doe defendants by March 2, 2023, at 10:00 a.m. Explanation: The quiet title statutes require a hearing to be held before a default judgment is entered: The court shall examine into and determine the plaintiff's title against the claims of all the defendants. The court shall not enter judgment by default but shall in all cases require evidence of plaintiff's title and hear such evidence as may...

Excerpt: ... leave to amend. (Code Civ. Proc. § 430.10, subd. (e).) To grant defendants Freitas and Sea Pine Ventures' motion for judgment on the pleadings as to the first cause of action in the third amended complaint for failure to state facts sufficient to constitute a cause of action, without leave to amend. (Code Civ. Proc. § 438.) To deny defendants' motion as to the third cause of action. Plaintiffs shall serve and file their fourth amended complain...

Excerpt: ... to the “American rule” that each party bears its own attorney fees. (Olson v. Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1147.) The fundamental objective of the private attorney general doctrine is to encourage suits enforcing important public policies by providing substantial attorney fees to successful litigants in such cases. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565 (Graham).) Under section 1021.5, t...

Excerpt: ...for recovery of a monetary judgment for $386,092.76 granted on July 28, 2011 from the United States Bankruptcy Court. (See Complaint, ¶ 5; Ex. A.) Defendant - who was the debtor in the bankruptcy proceeding - appealed the judgment, and the Ninth Circuit Court of Appeals published its final decision on July 28, 2014 (“2014 Decision”). (See In re Shawn Deitz (9th Cir. 2014) 760 F.3d 1038, 1039 [holding that the Bankruptcy Appellate Panel (“B...

Excerpt: ...endants”) jointly move for summary judgment of plaintiff Elidia Salinas' (“plaintiff”) Complaint, which states three causes of action: (1) medical negligence; (2) lack of informed consent; and (3) battery. Following plaintiff's opposition papers, defendants withdrew their contest of the first cause of action for medical negligence for both breach of duty and causation. Because at least the first cause of action for medical negligence remain...

Excerpt: ...§ 437c, subd. (c).) In moving for summary judgment, a “defendant … has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action … cannot be established, or that there is a complete defense to the cause of action.” (§ 437c, subd. (p)(2).) If the defendant does not meet that burden, the motion must be denied, even if the plaintiff has not opposed it adequa...

Excerpt: ...cur within 21 days of the date of this Order. To impose $2,453.10 in monetary sanctions against Defendant Ralph's Grocery Company dba Food's Co., to be paid to counsel for Plaintiff within 30 days of service of the Order by the clerk. Explanation: Code of Civil Procedure section 2025.450 provides, in pertinent part, as follows: (a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee...

Excerpt: ...Production of Documents; and for Monetary Sanctions Tentative Ruling: To grant and to award monetary sanctions in the total amount of $750 against plaintiff Tiernan Deedon, and plaintiff's attorney Justin B. Toobi, 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. The matters specified in defendant Mikhail Safwat, aka Safwat Michael's (“Mr. Safwat”...

Excerpt: ... clerk of the minute order. Explanation: Statutory Relief: The trial court has broad discretion to vacate the judgment and/or the clerk's entry of default that preceded it. However, that discretion can be exercised only if the moving party establishes a proper ground for relief, by the proper procedure, and within the statutory time limits. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) The court is empowered to relieve a party �...

Excerpt: ...truck as the representative of the PAGA action. Defendant moves under Wesson v. Staples the Office Superstore, LLC. ((2021) 68 Cal.App.5th 746, 763 [“Wesson”].) There, the Second District Court of Appeals noted that the question of whether trial courts have inherent authority to ensure that PAGA claims will be manageable at trial, and to strike such claims if they cannot be managed, was one of first impression. (Id. at p. 755.) The Second Dis...

Excerpt: ...ave to amend is granted only as to the portions of the operative complaint pertaining to plaintiff's representative status and the estate's survivor's claims to allow plaintiff to allege sufficient facts to show the parties' intent to include her in her representative capacity as a party to the Tolling Agreement. Leave to amend as to the allegations pertaining to the other heirs' wrongful death claims is denied. (Code Civ. Proc., §§ 435, 436.) ...

Excerpt: ...arbitration “if it determines that an agreement to arbitrate the controversy exists.” (Code Civ. Proc., § 1281.2.) However, there is “no public policy in favor of forcing arbitration of issues the parties have not agreed to arbitrate.” (Garlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1505.) Thus, when a motion to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controvers...

Excerpt: ...) A Second Amended Complaint may be filed within 10 days of service of the order by the clerk. All new allegations shall be in boldface type. Explanation: Plaintiffs Larry and Johnathan Norton essentially allege that they were duped into investing in a Ponzi scheme run by defendant Richard Ramirez and JMJ Capital Group. They were encouraged to invest in the scheme by defendant Steve Hirata. The First Amended Complaint (the FAC) alleges the follow...

Excerpt: ...ratory relief filed September 29, 2021. Plaintiffs seek to declare title to and the sale of real property in Fresno known as 7212 W. Belmont Avenue (“7212 Property”) and 7182 W. Belmont Avenue (“7182 Property”). Demurrer Generally The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether plaintiff has succeeded in stati...

Excerpt: ...473 as well as the court's equitable authority. (See Notice of Motion, p. 1:25; Motion p. 6:4.) The motion was first filed over two years ago on July 13, 2021. Plaintiff has requested numerous continuances, thus delaying the hearing and merits ruling, as well as flagrantly violating the local rules. “A party seeking relief under [Code of Civil Procedure] section 473(b) must file the motion within a reasonable time but not longer than six months...

Excerpt: ...rifications to his responses to Special Interrogatories, Set Two and Request for Production, Set Two, no later than 30 days from the date of this order, with the time to run from the service of this minute order by the clerk. The matters specified in plaintiff's Request for Admission, Set One, are deemed admitted, unless plaintiff serves, before the hearing, a proposed response to the requests for admission that is in substantial compliance with ...

Excerpt: ...30 p.m. in Department 403 for the defendant corporation to obtain counsel. Explanation: Corporations may not represent themselves before the court in propria persona, nor can corporations represent themselves through their officers, directors, or any other employee who is not an attorney. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145.) Corporations must be represented by an appropriately licensed attorney in court...

Excerpt: ...lames BBQ, pursuant to Code of Civil Procedure sections 428.10, 426.50 and 428.50.1 Defendant contends that it seeks to state a claim against a third-party, Rollin Flames, BBQ. Plaintiff opposes on the grounds that Rollin Flames BBQ is plaintiff's fictitious business name, and has always been run as a sole proprietorship. (Aguilar Decl., ¶¶ 2- 3.)2 Whether the cross-complaint states a claim against an existing party or a third-party, and thus w...

Excerpt: ...tual costs. The terms of the settlement allow up to $20,000 in costs. The settlement administrator, ILYM Group is charging a flat fee of $9,675.00. The remaining $317,860.24 is to be put toward the payment of PAGA penalties with 75% (238,395.18) to the LWDA and 25% ($79,465.06) to the aggrieved employees. Separately from the gross settlement amount, plaintiff is settling his individual claims against defendant for $7,500 in exchange for a general...