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2018.4.27 Demurrer, Motion to Strike 047
Location: Orange County
Judge: Delaney, Thomas A
Hearing Date: 2018.4.27
Excerpt: ...rt the six causes of action alleged against demurring defendants. First cause of action, count one for veterinarian malpractice: “The gravamen of [a veterinary malpractice] action is that in providing veterinary care, the veterinarian failed to use such reasonable skill, diligence, and attention as might ordinarily have been expected of careful, skillful, and trustworthy persons in the profession. The courts have generally recognized that for t...
2018.4.27 Demurrer 991
Location: Orange County
Judge: Delaney, Thomas A
Hearing Date: 2018.4.27
Excerpt: ...on of its meaning.' . . . While courts take judicial notice of public records, they do not take notice of the truth of matters stated therein. . . . ‘When judicial notice is taken of a document, ... the truthfulness and proper interpretation of the document are disputable.'” Herrera v. Deutsche Bank Nat. Trust Co. (2011) 196 Cal.App.4th 1366, 1375. Lack of Standing: Defendants contend that the Company sustained no injury-in-fact, because the ...
2018.4.27 Demurrer 572
Location: Orange County
Judge: Delaney, Thomas A
Hearing Date: 2018.4.27
Excerpt: ...s to support these elements. FAC, ¶¶ 5-6. Defendant contends Plaintiff failed to identify a specific sum and that the complaint only alleges an approximate amount. Defendant is correct that “actions for the conversion of money have not been permitted when the amount of money involved is not a definite sum.” PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 396. However, the amount of mon...
2018.4.27 Demurrer 225
Location: Orange County
Judge: Delaney, Thomas A
Hearing Date: 2018.4.27
Excerpt: ...y pleads facts to support each element, including (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51; Compl. ¶¶ 20, 21, 34,...
2018.4.20 Motion for Protective Order, to Quash Subpoena 671
Location: Orange County
Judge: Delaney, Thomas A
Hearing Date: 2018.4.20
Excerpt: ...s allegations, Plaintiff's motion to quash is GRANTED to the extent it the subpoena seeks production of Plaintiff's payroll records, and DENIED as to the remainder. Plaintiff's Motion for Protective Order is DENIED. The Complaint alleges that Plaintiff has suffered and continues to suffer financial losses. Her verified discovery responses, however, clarify that her “economic losses ceased accruing” when she began working for O'Reilly in Novem...
2018.4.20 Demurrer 831
Location: Orange County
Judge: Delaney, Thomas A
Hearing Date: 2018.4.20
Excerpt: ... on its face or from matters of which the court may or must take judicial notice, a demurrer on that ground is proper.'” Vaca v. Wachovia Mortg. Corp. (2011) 198 Cal.App.4th 737, 746. “'A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar ... to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it ...
2018.4.20 Motion to Set Aside Defaults, Vacate Default Judgments 609
Location: Orange County
Judge: Delaney, Thomas A
Hearing Date: 2018.4.20
Excerpt: ...a Code of Civil Procedure section 473 “must be resolved in favor of the party seeking relief from default.” Id. In addition, plaintiff's counsel should have, as a matter of professional courtesy, given notice of the impending default to defendants' counsel. Id. at 701-702. Defendants are ordered to pay Plaintiff $1,000 within ten (10) days of this order. Code Civ. Proc., § 473(c). Defendants shall serve and file the proposed answer attached ...
2018.4.20 Motion for Terminating Sanctions 302
Location: Orange County
Judge: Delaney, Thomas A
Hearing Date: 2018.4.20
Excerpt: ...onmonetary sanction on a pretrial motion in circumstances not contemplated by the discovery statutes, [the court] believe[s] that in most cases of purported spoliation the facts should be decided and any appropriate inference should be made by the trier of fact after a full hearing at trial. ” New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1431. In footnote 15, the New Albertson court referenced CACI Jury Instruction 204, w...
2018.4.13 Demurrer, Motion to Strike 968
Location: Orange County
Judge: Delaney, Thomas A
Hearing Date: 2018.4.13
Excerpt: ... which indicate that defendant might be prejudiced by nonjoinder . . .” Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 870. Motion to Strike Portion of First Amended Complaint: The Motion by Defendant Zaky to Strike Portion of First Amended Complaint is DENIED. Defendant moved to strike Paragraph 23, which stated, “Plaintiff is entitled to all reasonable costs of collection, as related to the unpaid balance due and owing by Defendants.” Cod...
2018.4.13 Motion for Summary Judgment, Adjudication 154
Location: Orange County
Judge: Delaney, Thomas A
Hearing Date: 2018.4.13
Excerpt: ...pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” State Farm failed to meet its burden of proof to show that Plaintiff cannot prove any of the causes of action. Plaintiff has s...
2018.4.13 Motion to Compel Arbitration 632
Location: Orange County
Judge: Delaney, Thomas A
Hearing Date: 2018.4.13
Excerpt: ... that agreement. As one authority has stated, there are six theories by which a nonsignatory may be bound to arbitrate: ‘(a) incorporation by reference; (b) assumption; (c) agency; (d) veil-piercing or alter ego; (e) estoppel; and (f) third-party beneficiary.'” Young Seok Suh v. Superior Court(2010) 181 Cal.App.4th 1504, 1513. “It is well established that a non-signatory beneficiary of an arbitration clause is entitled to require arbitratio...
2018.4.13 Motion to Vacate, Set Aside Default, Judgment, to Quash Service of Summons 208
Location: Orange County
Judge: Delaney, Thomas A
Hearing Date: 2018.4.13
Excerpt: ...CCP Section 473(b) permits a court to grant relief from a judgment, dismissal, order or other proceeding taken against a party on the grounds of “mistake, inadvertence, surprise or excusable neglect.” The law favors a trial on the merits, and doubts in applying Code of Civil Procedure Section 473 are resolved in favor of the party seeking relief from default. (Au–Yang v. Barton (1999) 21 Cal.4th 958, 963; Iott v. Franklin (1988) 206 Cal.App...
2018.4.13 Petition to Confirm Arbitration 165
Location: Orange County
Judge: Delaney, Thomas A
Hearing Date: 2018.4.13
Excerpt: ...a College Faculty Assoc. v. Santa Monica Community College District (2015) 243 Cal.App.4th 538, 544-45.) Even if the court were to consider Plaintiff's illegality defense, this case is distinguishable from South Bay Radiology Medical Associates v. Asher (1990) 220, Cal.App.3d 1074. In that case, the court found the entire transaction to be illegal. In this case, on the other hand, there is no contention that the bylaws requiring arbitration are i...
2018.4.6 Motion to Quash Subpoenas, Request for Monetary Sanctions 170
Location: Orange County
Judge: Delaney, Thomas A
Hearing Date: 2018.4.6
Excerpt: ...l.App.3d 516, 529 (disapproved on other grounds); Britt v. Superior Court (1978) 20 Cal.3d 844, 864-865; John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198. Defendants showed the information is relevant to their defense as to damages and the records could lead to the discovery of admissible evidence. A compelling interest is required to justify an obvious invasion of an interest fundamental to personal autonomy. Williams v. Superior Court (20...
2018.4.6 Motion to Deem Admitted Requests for Admission 702
Location: Orange County
Judge: Delaney, Thomas A
Hearing Date: 2018.4.6
Excerpt: ..., whose failure to serve a timely response to requests for admission necessitated” the motion. Accordingly, because Defendant's failure to serve a timely response to Plaintiff's Requests for Admission caused the filing of the instant motion, the court grants Plaintiffs' request for sanctions against Defendant Diane Lynch and imposes sanctions of $1,060.00 [(reasonable rate of $250 an hour x 4 hours) + $60) against Defendant, which shall be paid...
2018.4.6 Motion for Attorney's Fees, Costs, and Expenses 484
Location: Orange County
Judge: Delaney, Thomas A
Hearing Date: 2018.4.6
Excerpt: ...hancement is appropriate. Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138. See also Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 822. On its face, this case does not appear to be unusual in its complexity. Nor does it appear any enhancement is due for risk of loss or delay in payment as these factors have already been included in consideration of the lodestar. Id. Therefore, no enhancement will be applied. ...
2018.4.6 Motion for Preliminary Injunction 762
Location: Orange County
Judge: Delaney, Thomas A
Hearing Date: 2018.4.6
Excerpt: ...or Court (2004) 121 Cal.App.4th 1100, 1110. During the dissolution, the business of the partnership will wound down. The only issue involved is monetary damages. Sullivan has not shown Irreparable Injury. Probable Success on Merits: A preliminary injunction must not issue unless it is “reasonably probable that the moving party will prevail on the merits.” San Francisco Newspaper Printing Co., Inc. v. Sup.Ct. (1985) 170 CA3d 438, 442. (Emphasi...
2018.4.6 Motion to Compel Arbitration 508
Location: Orange County
Judge: Delaney, Thomas A
Hearing Date: 2018.4.6
Excerpt: ...ocedure section 1281.2 must prove by a preponderance of the evidence that: (1) the parties entered into a written agreement to arbitrate; (2) one or more of the claims at issue are covered by that agreement; and (3) the responding party refused a prior demand for arbitration under the agreement of the claims at issue. (Code Civ. Proc., § 1281.2; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) If the moving party meets this burden, th...
2018.4.4 Motion to Compel, to be Relieved as Counsel 036
Location: Orange County
Judge: Delaney, Thomas A
Hearing Date: 2018.4.4
Excerpt: ... cause for the production. (Code Civ. Proc., § 2025.480, subd. (a).) Hopkins requested Hardrock's PMQ witness produce documents to support Hardrock's claims that it has been damaged millions of dollars due to delays caused by Hopkins. Hardrock created and/or maintained those records, and Hopkins does not have access to them. Hardrock, however, failed to produce any documents. Hopkins also shows good cause for the second session of deposition, as...
2018.3.29 Motion for Leave to File Answer 643
Location: Orange County
Judge: Delaney, Thomas A
Hearing Date: 2018.3.29
Excerpt: ... will promote resolution on the merits of all issues between the parties, and Plaintiffs will not suffer prejudice due to the opposition, as Plaintiffs were aware of Defendant's position no later than 01/08/2018. (Code Civ. Proc., §§ 473(a)(1), 576.) Defendant shall within ten (10) days file and serve the second amended verified answer, which is attached to the motion as Exhibit A. Defendant to give notice. ...
2018.3.16 Motion to Transfer Venue 385
Location: Orange County
Judge: Delaney, Thomas A
Hearing Date: 2018.3.16
Excerpt: ...n (1952) 39 Cal.2d 458.) In the case of payment, performance is due at the place where the payment is to be sent. (Hale v. Bohannan, supra, at 39 Cal.2d at pp. 466-68.) The burden is on the moving party to establish the facts to demonstrate that the plaintiff's venue selection is not proper under any of the statutory grounds. (Fontaine v. Super. Ct. (2009) 175 Cal.App.4th 830, 836.) Here, Defendants fail to meet their burden to show Orange County...
2018.3.9 Motion to Vacate Default Judgment 392
Location: Orange County
Judge: Delaney, Thomas A
Hearing Date: 2018.3.9
Excerpt: ...osition on the merits, the recommendation is to grant this motion. (Elston v. City of Turlock(1985) 38 Cal.3d 227, 233.) Defendant shall file a responsive pleading to Plaintiff's Complaint within 15 days. Default Prove Up Hearing. Off calendar. Defendant is ordered to give notice ...
2018.3.9 Motion to Bifurcate 030
Location: Orange County
Judge: Delaney, Thomas A
Hearing Date: 2018.3.9
Excerpt: ...intiff fails to show how bifurcation would promote judicial efficiency. Plaintiff to give notice. ...
2018.3.9 Motion for Summary Judgment, Adjudication 154
Location: Orange County
Judge: Delaney, Thomas A
Hearing Date: 2018.3.9
Excerpt: ...350 (b), which requires the issues to be stated verbatim in the separate statement. The failure to comply with this requirement limits the court only determining if the entire summary judgment should be granted. Stating each issue separately is important to determining the motion properly. Burden of Proof: Code Civ. Proc., § 437c (p) (2) provides that “A defendant or cross- defendant has met his or her burden of showing that a cause of action ...
2018.3.9 Demurrer 387
Location: Orange County
Judge: Delaney, Thomas A
Hearing Date: 2018.3.9
Excerpt: ...f financial elder abuse are: (i) defendant took/hid/ appropriated/obtained/retained plaintiff's property, or assisted in same; (ii) plaintiff was 65 years of age or older/a dependent adult at the time of the conduct; (iii) defendant took/hid/appropriated/obtained/ retained]/assisted in taking/hiding/appropriating/obtaining/retaining the property for a wrongful use/with the intent to defraud/by undue influence; (iv) plaintiff was harmed; and (v) d...

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