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2020.08.14 Motion to Compel Production 769
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2020.08.14
Excerpt: ...Where there has been a response to RPDs that the propounding party finds inadequate, the propounding party may file a motion compelling production upon a showing of good cause. (CCP § 2031.310(b)(1) and (2); CRC Rule 3.1345; Weil & Brown, Cal. Prac. Guide, Civil Procedure before Trial §8:1494.1.) This motion may be utilized to attack a response containing objections, an agreement to comply that is incomplete, or a statement of inability to comp...
2020.08.07 Petition for Relief from Financial Obligation During Military Service 808
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2020.08.07
Excerpt: ...een materially affected by reason of active duty service, the court may grant a reasonable deferment of the payment obligation for a period of time equal to the length of the active duty service. Here, petitioner has provided this Court with a copy of his military orders, calling him from Reserve to Active Duty, effective 05/20/18. Prior to that reporting date, petitioner had incurred various periodic repayment obligations, including a mortgage, ...
2020.08.07 Petition for Hearing on Third Party Claim 720
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2020.08.07
Excerpt: ... for a debt incurred by the person's spouse before marriage.” (Fam. Code § 913.) “The finding of a trial court that property is either separate or community in character is binding and conclusive on the appellate court if it is supported by sufficient evidence, or if it is based on conflicting evidence or upon evidence that is subject to different inferences; and if a trial court determines that a presumption has been overcome such determina...
2020.08.07 Motion to Quash Service of Summons, Set Aside Default Judgment 383
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2020.08.07
Excerpt: ...be important in a particular case because it impacts the procedural mechanism available to attack the judgment, when the judgment may be attacked, and how the party challenging the judgment proves that the judgment is void." (OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1326, 1327.) Defendant has not shown, here, that the judgment is void on the face of the record. (OC Interior Services, LLC, 7 Cal.App.5th 1318...
2020.08.07 Petition to Confirm Arbitration Award 198
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2020.08.07
Excerpt: ...dings of arbitrators on questions of fact are final and conclusive and are not subject to judicial review, except under certain circumstances specified by statute, such as fraud, corruption, prejudicial misconduct in procedural matters, exceeding arbitrators' powers, or so imperfectly executing those powers that a mutual, final, and definite award was not made.” Olivera v. Modiano-Schneider, Inc., 205 Cal. App. 2d 9, 14 (Ct. App. 1962)(“Olive...
2020.07.31 Petition to Confirm Arbitration Award 369
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2020.07.31
Excerpt: ...curity laws, and unauthorized stock trading. Mastick v. TD Ameritrade, Inc. (2012) 209 Cal. App. 4th 1258, 1263. Timeliness of Pleadings Neither the Petition itself, nor respondent Bhaskar Chandrakant Vyas's (“Respondent”) Response are untimely. The one-year time frame for filing a petition to confirm an arbitration award pursuant to 9 U.S.C.A. § 9 is permissible and nor mandatory. Optimal Markets Inc. v. FTI Consulting, Inc., No. 08-5765 SC...
2020.07.31 Motion for Summary Judgment, Adjudication 661
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2020.07.31
Excerpt: ... th 242, 249; San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.) Claimant properly objected to the excessive length of the reply and the new evidence submitted with the reply. (Gafcon, Inc. v. Ponsor & Assocs. (2002) 98 Cal.App.4 th 1388, 1426.) Claimant points out that the Reply papers, which total 76 pages including the memorandum, reply separate statement, declarations and exhibits, are essentially a new MS...
2020.07.17 Petition to Confirm Arbitration Award, to Compel Production, to Vacate 506
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2020.07.17
Excerpt: ...d is Granted. Partnerships filed their original Petition to Vacate the interim award on November 17, 2019. On November 20, 2019, the final award was issued, and shortly thereafter, Partnerships filed this Amended Petition. Thus, the operative pleading is the Amended Petition to Vacate, not the original Petition. (State Comp. Ins. Fund v. Superior Court (2010) 184 Cal.App.4 th 1124, 1131 [“The amended complaint furnishes the sole basis for the c...
2019.10.11 Petition to Compel Arbitration 568
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2019.10.11
Excerpt: ...280(a); Devonwood Condo. Owners Assn. v. Farmers Ins. Exch. (2008) 162 Cal. App. 4th 1498, 1505. However, in regard to appraisals, such an arbitration would be before appraisers and not an arbitrator, whom generally have more limited powers that arbitrators. Devonwood, supra, at 1505. In this instance, the appraisers would only be able to determine the fair market valuation (“FMV”) of the property located at 4701 Teller Ave., Newport Beach, C...
2019.9.27 Motion for Reclassification 774
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2019.9.27
Excerpt: ...tion seeks consolidation, it is procedurally defective, as it does not identify for each case which parties have appeared, it was not filed under the lowest-numbered case and does not include each caption. Nor does it demonstrate that the Notice was filed in each case sought to be consolidated. And while the parties and counsel listed on the proof may be complete, that is not self-evident from the proof itself. Procedural compliance with C.R.C. 3...
2019.7.19 Motion for New Trial 398
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2019.7.19
Excerpt: ... Cal.2d 598, 600 (court may take judicial notice of its own records in assessing motion for new trial); Nichols v. Hast (1965) 62 Cal.2d 598, 600 (judicial notice is proper of the minute orders); Gulf Ins. Co. v. TIG Ins. Co. (2001) 86 Cal.App.4th 422, 438 (judicial notice taken of the dates of court filings and dates of events recorded therein).) The Court lacks jurisdiction to grant a new trial. A motion seeking a new trial is subject to strict...
2019.6.28 Petition for Leave to File Action Under Government Code 438
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2019.6.28
Excerpt: ...rsuant to CRC Rule 1.201. The Court hereby orders Plaintiff's counsel to re-file redacted versions of the Petition pursuant to the above rule within five-days of the hearing. As for the arguments, “A civil cause of action . . . generally accrues at the time of the [injury].” [Citation] “That date may be postponed under the delayed discovery doctrine. [Citation.] Under this doctrine, a cause of action does not accrue until the plaintiff disc...
2019.6.28 Motion to Designate Case as Complex 326
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2019.6.28
Excerpt: ...h 32, 44-45.) As such, until there is an actual order staying the litigation, this Court may exercise its continuing power to designate this matter as complex. (CRC Rule 3.403(b).) Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790 (“Brock”) and Twentieth Century Fox Film Corp. v. Superior Court(2000) 79 Cal.App.4th 188 (“Twentieth Century”) do not require a different result. Brock explains that a party must take action to co...
2019.6.14 Petition to Confirm Arbitration Award 966
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2019.6.14
Excerpt: ...ct an award rendered by the arbitrator shall be filed in any court of competent jurisdiction in the county in which the property is located.” [Emphasis added.] Vincent Decl., Ex. A. “[P]olicies favoring the efficiency of private arbitration as a means of dispute resolution must [] sometimes yield to its fundamentally contractual nature, and to the attendant requirement that arbitration shall proceed as the parties themselves have agreed.” [...
2019.6.14 Motion to Compel Arbitration 225
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2019.6.14
Excerpt: ... motion to compel arbitration under CCP §1281 et seq, the moving party has the burden of demonstrating (1) an arbitration agreement covering the controversy, (2) a demand for arbitration consistent therewith, and (3) a refusal by the other party to arbitrate. Mansouri v. Superior Court (2010) 181 Cal.App.4 th 633, 640; Brodke v. Alphatec Spine Inc. (2008) 160 Cal.App.4 th 1569, 1575. The burden rests with the party seeking to compel arbitration ...
2019.5.31 Petition to Enter Judgment Cost for Costs 551
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2019.5.31
Excerpt: ...ute's cost-shifting provisions.” (Id. at 142.) “[I]t is apparent that once the conditions of … section 998 are met, a defendant may be required to pay expert witness fees incurred during arbitration. . . There is nothing to suggest that the final phrase [of section 998(d)—'in addition to plaintiff's costs'— applies only to cases that go to trial but not to arbitration. Indeed, it is evident that the above statute uses the term ‘plaint...
2019.5.31 Motion to Appoint Receiver 637
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2019.5.31
Excerpt: ... of the petition on respondents and any others with a recorded interest in the subject property as required. See, Health & Safety Code § 17980.7(c). Also, petitioner City of Westminster submitted evidence of substandard conditions at the subject property and failure to rectify such conditions that supports appointment of a receiver. On April 29, 2019, the Court appointed Mr. Eric Beatty Receiver on an interim basis for the real property which is...
2019.5.31 Motion for Attorney Fees 794
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2019.5.31
Excerpt: ... Motion is not stayed pending appeal. CCP §916(a); Bankes v. Lucas (1992) 9 Cal.App.4th 365, 368-369, superseded by statute on other grounds as stated in Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1197 Defendant Wells Fargo Bank, N.A,'s Motion for an Award of Attorney's Fees under Civil Code §1717 is Granted. The Court has considered all of the parties' papers, including the supplemental briefing ordered by the Court on May 10. 2019, t...
2019.5.10 Petition to Confirm Arbitration Award 342
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2019.5.10
Excerpt: ... arbitration appears to have been pursued against “Larkin.” The Award is against Larkin. The fact that this may have been a mistake may be immaterial to the Court's determination. Arguably any correction in the final award must be made by the arbitrator, which may then be confirmed by the Court. Without a valid reason for correction and without consistent paperwork the only thing this Court may do is confirm the award as written. CCP §1286.2...
2019.5.10 Motion to Strike or Tax Costs 196
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2019.5.10
Excerpt: ...erged into a single proceeding and result in only one judgment. (Hamilton v. Asbestos Corp., Ltd.(2000) 22 Cal.4th 1127, 1147-1148 [in consolidation for all purposes, two actions are merged into a single proceeding and result in only one judgment]; Guardianship of C.E. (2019) 31 Cal.App.5th 1038, 1053 [“Consolidation, as a procedural matter, converts two cases into one action.”]; Bridewell-Sledge v. Blue Cross of California (9th Cir. 2015) 79...
2019.5.10 Motion to Set Aside or Vacate Dismissal 701
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2019.5.10
Excerpt: ..., it expressly prohibits such death knell responses: “if a failure to comply with these rules is the responsibility of counsel and not of the party, any penalty shall be imposed on counsel and shall not adversely affect the party's cause of action or defense thereto.” §575.2(b). In addition, although plaintiff's counsel cited the wrong subsection, CCP §473 does provide a vehicle for having this voidable order set aside. Counsel cites to sub...
2019.4.19 Motion to Tax Costs 368
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2019.4.19
Excerpt: ...At this time, the Court is not inclined to continue the hearing further. There being no evidence that the bankruptcy case is pending, and with the evidence which was received of the bankruptcy discharge, the Court is inclined to rule as follows: According to the records, Plaintiff received a Chapter 7 bankruptcy discharge in September, 2018. (See 12/27/18 Low Decl. herein, and Exhibits.) A Chapter 7 discharge relieves an individual debtor from pe...
2019.4.19 Motion to Protect Due Process 143
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2019.4.19
Excerpt: ...ier Bank and its E&O carrier, Progressive. Although the latter denied coverage, it eventually agreed to pay Premier $350,000 with a release of any related claims for reimbursement. Plaintiffs asked Premier Bank to pay them for their investigatory (albeit non-retained) efforts in the approximate amount of $170,000. Premier Bank initially refused, but ultimately paid plaintiffs $99,000 in exchange for a release of all future claims against the bank...
2019.1.25 Motion for Assignment Order 839
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2019.1.25
Excerpt: ...B owes Curci under the Judgment. This is a collective limit placed on the assignment of payment rights across the six notes. (CCP § 708.510(d).) JPB argues that the face value of all the notes which is said to be over $42.6 million (not including interest) is far more than the outstanding amount of the judgment here, which appears to be in the range of $11 million at this time. However, the Court is not authorizing the Judgment Creditor to colle...
2019.1.25 Motion for Assignment Order 877
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2019.1.25
Excerpt: ...ermine if the Opposition was timely filed and served and therefore disregards the same. (See Calif. Rules of Court, rule 3.1300, subd. (d).) Additionally, no evidence was timely filed by Debtor, also as ordered by the Court, so there is no evidence before the Court as to income, expenses, etc., that would allow the Court to properly determine a specific dollar amount that Creditor would be assigned. However, pursuant to CCP § 706.050: “. . . [...
2019.1.25 Motion for Relief Under Government 033
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2019.1.25
Excerpt: ... public airport. “Where the lateness of the claim is attributable to the failure of the claimant ... to conduct a reasonably prudent investigation of the circumstances of the accident, relief from the claims filing statute is not available.” (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1296.) Petitioner has also failed to demonstrate any effort, much less a diligent effort, to retain legal counsel within six mont...
2019.1.25 Motion for New Trial
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2019.1.25
Excerpt: ...Jury Instructions Withdrawn, f. 11/13/18.] As a result, these were not submitted to the jury to decide in connection with their verdict. [See Special Verdict f. 11/13/18.] The jury was only asked to consider awarding plaintiff noneconomic damages for which the jury found the plaintiff was not warranted compensation. Case law instructs that noneconomic damages are perhaps uniquely within the province of a jury to decide because they are difficult ...
2019.1.25 Motion to Appoint Receiver 938
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2019.1.25
Excerpt: ... Mr. Rodriguez on 10/23/18 (ROA 10), that he was served with this Motion on 10/29/18, and City asserts that he appears to be the record owner (Complaint ¶ 5). But no evidence is presented as to whether anyone else has a recorded interest in the subject property. City states (MPAs pp. 13-14) that it thoroughly searched “relevant recorded documents” to attempt to locate anyone else with an interest in the Property. But no evidence is presented...
2019.1.25 Motion to Appoint Receiver 545
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2019.1.25
Excerpt: ... property. City has failed to do so.. City has shown that the Petition was served on Vera Arias and any other interested persons by mailing it to the property address and posting it there, and that Sandra Arias was served personally. City also states that it conducted a “reasonably diligent search” and could not find evidence of anyone else with a claim to Vera Arias' interest in the property. (Petition p. 4.) But no evidence is presented as ...
2018.7.27 Motion to Quash Service of Summons 935
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2018.7.27
Excerpt: ...C.P. § 412.20(a). With the exception of the last document, which appears to be a partial printing, the documents attached to the Motion do not have the seal of the Court, the signature of the clerk, or a Court case number. There are also documents from what appears to be a different case with different defendants. This is all improper. Although the records on file with the Court do have the proper seal, signature, and case number, it does not ap...
2018.7.27 Motion for Summary Judgment, Adjudication 294
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2018.7.27
Excerpt: ... states that he been provided with extensive documentation to review in order to enable him to evaluate this matter and formulate opinions, including Mr. Mann's responses to form interrogatories and special interrogatories, the transcript of Mr. Mann's deposition, medical records pertaining to Mr. Manns from Orange County Fire Authority, Saddleback Memorial Medical Center, Caducceus Medical Group, St. Joseph Health Mission Hospital, Pain Manageme...
2018.7.27 Demurrer, Motion to Strike, for Summary Judgment, Adjudication 562
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2018.7.27
Excerpt: ..., Inc. C.C.P. § 437c. From the evidence before the Court attached to the declaration of attorney Jack H. Snyder, as well as the declaration of Bancroft S. Gordon (Vice President, Assistant General Counsel & Corporate Secretary at Marriott International, Inc.), it is reasonably deducible that 1) there is no legal relationship between Marriott International, Inc., and Newport Coast Resort; 2) there is an absence of ownership or management of the N...
2018.6.15 Motion to Transfer, to Dismiss, to Quash 710
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2018.6.15
Excerpt: ...o constant and pervasive “as to render [it] essentially at home in the … State.” (Daimler AG v. Bauman (2014) 571 U.S. 117, 122.) “[O]nly a limited set of affiliations with a forum will render a defendant amenable to all-purpose jurisdiction there.” “With respect to a corporation, the place of incorporation and principal place of business are “ paradig[m] ... bases for general jurisdiction.” A showing based on a different grounds ...
2018.6.15 Motion for Judgment on the Pleadings 495
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2018.6.15
Excerpt: ...8, no reason for the stay was specified as required by CRC Rule 3.650(c), the Notice was not properly served as required by CRC Rule 3.650(a), and the stay was filed after the Motion, Opposition, and Reply papers had already been filed. Therefore, the Court's ruling on this Motion is appropriate at this time. Inadequate Meet & Confer Pursuant to C.C.P. § 439 (eff. 01/01/18), Recon was required to meet and confer with Plaintiff at least five days...
2018.6.15 Motion to Tax Costs 997
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2018.6.15
Excerpt: ...Defendant made a substantial 998 offer to Plaintiff, $75,100, which the Plaintiff did not accept. At trial, Plaintiff was not awarded nearly as much as the 998 offer (a $500 jury verdict). Under CCP § 998, therefore, Defendant is entitled to recover its post-offer (ordinary) costs from the Plaintiff, as well as in the Court's discretion, be awarded its post- offer expert witness costs. (CCP §998(c).) The Court finds it appropriate here to award...
2018.6.15 Motion for Summary Judgment, Adjudication 560
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2018.6.15
Excerpt: ...had the right to use and enjoy that property in any manner they pleased: whether that be using the embryos to try and achieve a pregnancy, giving them to others, or storing them elsewhere indefinitely.” The right to spend money on storage fees, or a failed frozen transfer, is novel but the idea that there was some inchoate value in just having them around in storage might be. In other words, is there value in hope? Plaintiffs also assert a pote...
2018.6.8 Motion for Summary Judgment, Adjudication 320
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2018.6.8
Excerpt: ...Palo Alto (2007) 157 Cal.App.4th 728, 744.) There appear to be certain deficiencies with the moving papers. First, a plaintiff cannot obtain summary judgment on a breach of contract cause of action without evidence of the amount of damages. (Paramount Petroleum Corporation v. Superior Court (2014) 227 Cal.App.4th 226, 241.) Here, the moving papers did not include material facts about the amount of damages, nor does the moving declaration have tes...
2018.6.8 Motion for Summary Judgment, Adjudication 337
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2018.6.8
Excerpt: ...laintiff and his dog. There is conflicting evidence as to precise series of events, but nothing changes the fact that Max escaped the property unrestrained and attacked. Shannon and Dwight Porter (property owners) move to summarily adjudicate in their favor the two causes of action alleged against them. Max was being cared for in their home, and escaped from their home en route to attacking plaintiff. Summary judgment is no longer a disfavored re...
2018.6.8 Motion for Summary Judgment, Adjudication 383
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2018.6.8
Excerpt: ...Palo Alto (2007) 157 Cal.App.4th 728, 744.) There appear to be certain deficiencies with the moving papers. First, a plaintiff cannot obtain summary judgment on a breach of contract cause of action without evidence of the amount of damages. (Paramount Petroleum Corporation v. Superior Court (2014) 227 Cal.App.4th 226, 241.) Here, the moving papers did not include material facts about the amount of damages, nor does the moving declaration have tes...
2018.6.8 Motion to Compel Production, to Quash 083
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2018.6.8
Excerpt: ...nt Statement after the court- ordered meet and confer took place. (See 4/20/18 Minutes, p. 3-4). The record reflects that the parties have also entered into a stipulated protective order. RFPs No. 7 and 10 remain in dispute. (See Joint Stmt. 5/21/18.) The Court now Grants the motion to compel as set forth below. The 1 st cause of action in the operative complaint, alleges that Defendant Taylor purchased the Red Hill property in 2011 using approxi...
2018.5.18 Motions for Sanctions, to Compel, to Strike OSC, etc. 937
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2018.5.18
Excerpt: ...OW CAUSE This case comes to Dept. 16 by transfer. This may have been a straightforward employment dispute. However, for whatever reason it has become much more. There are more than 1000 filings in the Registry of Action, representing:  14 attorneys/firms coming and going;  6 aborted trial dates;  24 pleading/attacking motions;  7 generations of operative pleadings;  7 discovery motions. Before the Court on 5/18 are 10 additional di...
2018.5.18 Motion to Contest Good Faith Settlement 204
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2018.5.18
Excerpt: ...ing tortfeasors. Cal. Code Civ. Proc. § 877.6(c). A party contesting the good faith of a settlement has the burden of showing there was a lack of good faith in the settlement. Code of Civil Procedure § 877.6(d). While it is true that “[t]he party asserting the lack of good faith [has] the burden of proof on that issue,” it is nonetheless true that, “[i]f ‘there is no substantial evidence to support a critical assumption as to the nature...
2018.5.18 Motion to Compel Arbitration 453
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2018.5.18
Excerpt: ...orked. La Bodega Market, a dba, even if unregistered, is not a separate legal entity from Defendant Holy Foods, Inc. (Pinkerton's Inc. v. Sup. Ct., 49 Cal.App.4th (1996) 1342, 1344.) Holy Foods, Inc. is clearly an express beneficiary of La Bodega Market as the owner of the dba pursuant to Section 1c of the Arbitration Agreement. Defendant acknowledged that it had mixed up describing Exhibit “A” with “B”, and then Exhibit “C” with “D...
2018.5.18 Motion for Summary Judgment, Adjudication 083
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2018.5.18
Excerpt: ...re of the records sought, significant financial discovery and disputes regarding the breadth and scope. The Court is not persuaded to deny the motions for this reason. Plaintiff alternatively requests that the Court continue the hearings further. As to this, Defendants question the sufficiency of the declaration of plaintiff's counsel (Mr. Gaines) to support the request for a mandatory continuance under CCP §437c(h). “An opposing party's decla...
2018.5.18 Motion for Sanctions 971
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2018.5.18
Excerpt: ...heir reply briefs after the defendants' opposition brief was filed was improper. The Court will not consider the evidence filed by the plaintiffs after the defendants' filed their opposition brief because the defendants did not have an opportunity to respond to the evidence. Insufficient Evidence Filed in Support of Motion - Evidence in Reply: The moving party generally may not rely on additional evidence filed with its reply papers. San Diego Wa...
2018.5.18 Motion for Reconsideration, to Set Aside 803
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2018.5.18
Excerpt: ... served by email. (See CCP §1008(a); Docket #217; CCP §1013(a)) and CCP §1010.6(a)(4)). On this record, it appears that Plaintiff acted in time. However, the papers do not present new facts or circumstances to justify the court's reconsideration of the ruling. (CCP § 1008(a).) For new or different facts, Plaintiff seems to cite his realization that the underlying discovery responses, which had objections, were signed by the counsel for Defend...
2018.5.11 Motion to Set Aside, Vacate Default and Judgment 445
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2018.5.11
Excerpt: ...rprise or Excusable Neglect” (CCP § 473(b)): The court is empowered to relieve a party “upon any terms as may be just … from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473(b).) The statute specifies that the application for relief “shall be accompanied by a copy of the answer or other pleading proposed to be filed … othe...
2018.5.4 Motion to Compel Answers 819
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2018.5.4
Excerpt: ...esponses are untimely. C.C.P. § 2030.290(a). The party propounding may file a motion to compel answers to interrogatories and seek monetary sanctions. C.C.P. § 2030.290(c). The Court is required to impose monetary sanctions, unless the sanctioned party acted with substantial justification. Id. The Motion is Moot as Substantive Responses Were Provided After the Motion Was Filed Subsequent to Enterprise's filing of its Motion, it appears that Pla...
2018.5.4 Demurrer, Motion to Strike 655
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2018.5.4
Excerpt: ...as merit. Pursuant to Code of Civil Procedure Section 472, “[a]ny pleading may be amended once by the party of course, and without costs, at any time before the answer or demurrer is filed, or after demurrer and before the trial of the issues of law thereon…” Additionally, the failure to oppose the Demurrer may be construed as having abandoned the claims. See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 [“Plaintiffs did not o...
2018.5.4 Demurrer, Motion to Strike 562
Location: Orange County
Judge: Di Cesare, James
Hearing Date: 2018.5.4
Excerpt: ...nts failed to comply with CCP sections 430.41 and 435.5, which require the moving party, at least five days before the date the responsive pleading is due, or at least five days before the date a motion to strike must be filed, to conduct a meet & confer in person or by telephone with the party who filed the challenged pleading for the purpose of determining whether an agreement can be reached that would resolve the objections being raised in the...

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