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2022.09.08 Motion to Set Aside Dismissals 486
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.09.08
Excerpt: ...w disabled individuals to discern if the hotel is accessible to them. On 8/30/2021, the court issued “Minute Order No. 1” (ROA #45) regarding actions defined as the “Hotel Website Cases”. Per that Minute Order, Garcia vs. Resort Rental LLC is the lead action, and for all of the Hotel Website Cases filed by the Center for Disability Access as counsel for plaintiffs: “(d) All motions, petitions and applications brought to the court for ad...
2022.09.08 Motion for Issue, Evidence, and Terminating Sanctions, for Monetary Sanctions 323
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.09.08
Excerpt: ...g sanctions against Margareta based on her failure to respond to discovery propounded on 12/27/2019, including form interrogatories (“FROGS”), requests for production of documents (“RFPS”) and requests for admission (“RFAS”) and her failure to obey two court orders (entered on 12/13/2021 and 4/14/2022) compelling responses to that discovery, citing CCP §§2030.290(c) and 2023.010 (d) and (g). CCP §2030.290(c) authorizes the court to...
2022.09.01 Demurrer, Motion to Strike 139
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.09.01
Excerpt: ...e facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day ...
2022.09.01 Demurrer 005
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.09.01
Excerpt: ... apple”): • [7:141] At least one case holds such demurrers are improper because the court is “foreclosed from rendering a new determination on the viability of those claims” absent a timely motion for reconsideration under CCP § 1008 (see ¶ 7:155.2 ff., 9:324 ff.). [Bennett v. Suncloud (1997) 56 CA4th 91, 96-97, 65 CR2d 80, 83] • [7:142] Other courts have allowed demurrers to amended pleadings on grounds previously overruled because �...
2022.08.25 Motion for Summary Judgment, Adjudication 287
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.08.25
Excerpt: ...facie showing of the existence of a triable issue of material fact.” (Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1124.) Under Section 437c(p)(2), 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause...
2022.08.25 Motion for Leave to File Complaint 446
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.08.25
Excerpt: ...retion” in allowing amendments to pleadings. (Foot's Transfer & Storage Co. v. Superior Ct. (1980) 114 Cal. App. 3d 897, 901.) “[W]hat constitutes “good faith”-or lack of it-under Code of Civil Procedure section 426.50 must be determined in light of and in conformity with the liberality conferred upon the trial courts by the section and by prior law. We conclude that this principle of liberality requires that a strong showing of bad faith...
2022.08.18 Motion to Set Aside Default Judgment, Quash Service of Summons 130
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.08.18
Excerpt: ...ion, like the present one, that is brought under Civ. Proc. Code § 473(d) as a void judgment can be attacked at any time. (Westport Oil Co. v. Garrison (1971) 19 Cal. App. 3d 974, 978; Falahati v. Kondo (2005) 127 Cal. App. 4th 823, 830; Yeung v. Soos (2004) 119 Cal. App. 4th 576, 582 (“Yeung”).) Although there is a time limit under Civ. Proc. Code § 473.5, that code section does not apply here as the default judgment was void on its face, ...
2022.08.18 Demurrer to FAC 691
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.08.18
Excerpt: ...of the demurrer. (See Arce v. Kaiser Foundation Health Plan (2010) 181 Cal.App.4th 471, 482). Merits This action arises out of an installment promissory note by plaintiff payable to Wells Fargo for $885,000 secured by a first trust deed in connection with plaintiff's property in Corona del Mar. (FAC ¶¶2, 7) In April or May of 2017, plaintiff defaulted on the note and applied to Wells Fargo for loan modification, which was denied. (FAC ¶6) On 4...
2022.08.18 Demurrer 846
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.08.18
Excerpt: ...ransport van owned and operated by defendant Medlink. (Id.) Plaintiffs allege that the decedent was ejected from her wheelchair in the motor vehicle collision because Medlink failed to properly restrain her during transport. (FAC ¶12). They further allege that Defendants maintained a policy and practice of failing to compensate its employees for all hours worked, requiring employees to inspect equipment and supplies used to transport patients, i...
2022.08.18 Demurrer 357
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.08.18
Excerpt: ...an inference that CRA was in fact a party to the Option Agreement. As Parman points out, the Option agreement contains representations and warranties specifically being made to CRA and by CRA, not Thompson. (TACC Ex. 1, ¶ 8.) The TACC also alleges that Parman and CRA and Thompson entered into the Option Agreement. (TACC ¶ 85.) Given the ambiguity raised on the face of the documents, the Court finds CRA's argument to be a factual issue that shou...
2022.08.11 Demurrer, Motion to Strike SAC 005
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.08.11
Excerpt: ...Action (Negligence, Intentional Infliction of Emotional Distress [IIED], Negligent Infliction of Emotional Distress [NIED]) As the Court previously stated in the first round of demurrers, negligence, IIED and NIED all fall within the 2-year period of limitations set forth in CCP §335.1 for injury caused by the wrongful act or neglect of another. The statute of limitations begins to run for negligence when the plaintiff has discovered or through ...
2022.08.11 Motion for Leave to Intervene 170
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.08.11
Excerpt: ...djudicated in other actions, etc.), which are not properly the subject of this Motion. The only issue before this court is whether or not Districts are permitted to file a Complaint in Intervention (Motion, Ex. 1 - “CII”) in this matter. As such, while the court will address the general allegations in plaintiffs Orange County Board of Education, Children's Health Defense, and Children's Health Defense-California Chapter's (“Plaintiffs” to...
2022.08.11 Motion to Appear Pro Hac Vice 457
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.08.11
Excerpt: ...r an order compelling third party JPMorgan Chase Bank N.A. to comply with a subpoena for the production of documents. Plaintiff also moves for an order imposing a monetary sanction of $4522.50 against JPMorgan Chase Bank. MP CONTENTIONS: Plaintiff brought this action after defendants acted as an escrow holder for plaintiff's $1.55 million investment into a company that defendants represented and beneficially owned. Under the escrow instructions p...
2022.07.14 Motion to Enforce Settlement Agreement 256
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.07.14
Excerpt: ...Per that Minute Order, after defendants failed to comply with certain terms of the settlement agreement, the property was to be sold under court supervision. On 7/9/2020, the court found that although there was no formal written settlement agreement between the parties, there is a valid and binding settlement agreement of the entire action between plaintiff and defendants Hermelinda Zamora and Maria Zamora that was placed on the record orally bef...
2022.07.14 Motion for Summary Judgment, Adjudication 651
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.07.14
Excerpt: ...ent, in violation of C.C.P. § 437c(b)(3), which defect alone “may constitute a sufficient ground, in the court's discretion, for granting the motion.” However, as a responsive Separate Statement was very belatedly filed by Plaintiff on 7/7/22, the Court has elected to consider it here, despite the pages of improper argument presented as a preliminary statement at pp. 1-4 therein. The Complaint asserts two causes of action (each a “COA”) ...
2022.07.14 Demurrer, Motion to Strike 544
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.07.14
Excerpt: ...ents. The court therefore will disregard the Requests for Admission and responses Defendants produced in its reply. The court also notes, even if it were to consider the new evidence in Defendant's reply brief, that evidence would not change the court's ruling on this Demurrer. “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Blank v. Kirwan (1985) 39 Cal...
2022.07.07 Motion to Vacate Dismissal 486
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.07.07
Excerpt: ...of service complying with the 8/30/2021 Minute Order. He failed to do so. 2. Demurrer by USA Hotel Group LLC to FAC by Rafael Arroyo in 30-2020- 01173676 (ROA #306, 308, 311, 313, 314) The demurrer was served only on the plaintiff's counsel in violation of Judge Hunt's 8/30/2021 Minute Order. On 5/26/2022, moving party was ordered to file proof of service showing compliance with the 8/30/2021 Minute Order, and plaintiff was ordered to file the FA...
2022.07.07 Motion to Compel Further Deposition 688
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.07.07
Excerpt: ...bjections pursuant to Evid. Code §§ 970, 971, and 980, and objections against self-incriminating pursuant to 5th Amendment rights. The court finds none of these objections are applicable to the questions at this present time. 1) Marital Privilege Objections (Evid. Code §§ 970, 971, 980) As to the marital privilege objections, none of the questions request any information about Lamberto's wife, co-defendant Meredith Anne Castillo (“Meredith�...
2022.07.07 Motion for Summary Judgment, Adjudication 303
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.07.07
Excerpt: ... is in default for nonpayment of rent; (4) the tenant has been properly served with a written three-day notice; and (5) the default continues after the three-day notice period has elapsed.” (Kruger v. Reyes (2014) 232 Cal.App.4th Supp. 10, 16, citation omitted.) A valid three-day pay rent or quit notice is a prerequisite to an unlawful detainer action. (Code Civ. Proc., § 1161(2); Cal-American Income Property Fund IV v. Ho (1984) 161 Cal.App.3...
2022.06.30 Special Motion to Strike 601
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.06.30
Excerpt: ...e, that date was 6/17/2022. The opposition papers were woefully late, filed and served on Cape Frio only 2 days before the court hearing. Nevertheless, although the court has broad discretion under CRC rule 3.1300(d) to refuse to consider papers served beyond the deadline, (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765) the court has considered plaintiff's opposition here. Cape Frio's Request for Judicial Notice Cape Frio's unopposed r...
2022.06.30 Motion for Summary Judgment, Adjudication 434
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.06.30
Excerpt: ...vidence showing either that: (1) one or more elements of plaintiff's prima facie case is lacking; or (2) the adverse employment action was based upon legitimate, nondiscriminatory factors. (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003, citing Guz v. Bechtel National, Inc., (2000) 24 Cal.4th 317, 357.) If the employer's moving papers satisfy the initial burden, the burden shifts to the employee to “demonstrate a triable issue ...
2022.06.30 Motion for Judgment on the Pleadings 540
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.06.30
Excerpt: ...Amended Complaint (the “FAC”), based on the recent decision in Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209 (“Rodriguez”). Kia argues that under Rodriguez, Plaintiff's claims in COAs 1-5 are barred, because the subject vehicle was purchased as a used car from a retail seller unaffiliated with the manufacturer, and thus does not qualify as a “new motor vehicle” under the relevant portions of the Song- Beverly Consumer Warranty Ac...
2022.06.30 Demurrer 579
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.06.30
Excerpt: ..., Plaintiff argues that Moving Party is liable pursuant to Education Code §44808, which imposes liability on school districts where they have “undertaken to provide transportation for such pupil to and from the school premises, has undertaken a school- sponsored activity off the premises of such school, has otherwise specifically assumed such responsibility or liability or has failed to exercise reasonable care under the circumstances.” (Cal...
2022.06.23 Special Motion to Strike FAC 358
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.06.23
Excerpt: ...tivity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.”  (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.)  Prong 1: Protected activity   A claim may be struck pursuant to section 425.16 only “if the speech or petitioning activity itself is the wrong complained of, and not just evidence...
2022.06.23 Motion to Tax Costs 181
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.06.23
Excerpt: ...hat they were not reasonable or necessary. Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29; Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 773-74. The party challenging costs does not meet this burden by arguing that the costs were not necessary or reasonable, but must present evidence and prove that the costs are not recoverable. Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1...

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