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2023.11.30 Motion for Summary Judgment, Adjudication 581
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.11.30
Excerpt: ...t the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reaso...
2023.11.30 Demurrer, Motion to Strike 456
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.11.30
Excerpt: ...st set forth the essential facts of his or her case ' " 'with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent' " ' of the plaintiffs claim. [Citation.] Legal conclusions are insuffcient. [Citations.] 'We assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law.' [Citation.]" (Annocki v. Peterson Enterpri...
2023.11.16 Demurrer, Motion to Strike 691
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.11.16
Excerpt: ... as admitting all material facts properly pleaded. (Quelimane co., Inc. v. Stewart Title Guar. co. (1998) 19 cal.4th 25, 38.) BREACH OF CONTRACT on 6/8/23, the Court overruled WF's previous demurrer to the Breach of Contract cause of action as alleged in the Second Amended Complaint. In ruling on that demurrer, the Court granted plaintiff leave to file an amended complaint. In doing so, plaintiff also changed the allegations in the TAC which form...
2023.11.16 Demurrer 233
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.11.16
Excerpt: ...ondition, which is a height differential, is trivial and City has statutory immunity for any design defect. City asks for judicial notice ofa highway easement deed and a parcel map (Exhibits 1 and 2 to the RIN, ROA 18). Plaintiff opposes the demurrer and contends that the first cause of action is sufficiently pled. She contends that it clearly alleges that she was injured as a result of a defect or dangerous condition on public property. She also...
2023.11.16 Demurrer 133
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.11.16
Excerpt: ...Request for Judicial Notice. Defendant TIG requests the Court take judicial notice of: (1) the license contractor's bond history page from the California Contractor's State License Board website relating to Classic Remodeling, License No. 980373 (Exhibit 1); and (2) the Complaint filed in this action on April 11, 2023. The Court GRANTS request for judicial notice of Exhibit 1 pursuant to Evidence Code secton 452(h). The Court GRANTS judicial noti...
2023.11.16 Application for Right to Attach Order and Writ of Attachment 407
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.11.16
Excerpt: ...seized and held until final adjudication at trial." (Lorber Indus. v. Turbulence, Inc. (1985) 175 Cal. App. 3d 532, 535.) Plaintiff seeks a writ of attachment and rightto attach order. A writ of attachment may issued if 1) the claim is for money; 2) based upon a contract; 3) where the amount is readily ascertainable amount not less than five hundred dollars. (Civ. Proc. Code S 483.010(a).) A right to attach order ("RTAO") shall be issued if the c...
2023.11.09 Motion for Summary Judgment 357
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.11.09
Excerpt: ... the cases Parman cites to support her motion inwlved summary judgment proceedings. In addition, none of the cited cases held that where the claims in a declaratory relief action would necessarily be decided in a previously filed underlying action, the declaratory relief action is invalid as a matter of law. Instead, all the cited cases acknowledge the general principle that it is within the court's discretion to refuse to entertain a declaratory...
2023.11.09 Demurrer, Motion to Strike 108
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.11.09
Excerpt: ... this ruling. As a preliminary ma©er, the Court notes that an OpposiŸon was belatedly submi©ed at almost midnight on Friday, 9/29/23, although it was due on 9/21/23. The Court has thus declined to consider the unŸmely OpposiŸon. On the merits, the primary argument presented in the Demurrer is that each of the claims is Ÿme-barred, as based on alleged errors or misrepresentaŸons that occurred in mid-2017, which was more than 5 years ...
2023.11.09 Demurrer to FAC 942
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.11.09
Excerpt: ...3d 311, 318.) Cause of Action 2: Breach of Contract To allege a claim for breach of contract plaintiff must plead: (1) the existence of a contract; (2) the plaintiff's performance or excuse for nonperformance; (3) the defendant's breach; (4) resulting damages to the plaintiff. (Oasis West Realty, LLC v. Goldman, (2011) 51 Cal. 4th 811, 821.) Defendant asserts that though the lease agreement is attached to the complaint, it fails to connect the la...
2023.11.09 Demurrer 200
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.11.09
Excerpt: ...or the delay in that counsel was unaware Indigenous People's Day, now in its second year, was a court holiday. The court will therefore consider Plaintiff's oppositions. Defendant's request to take judicial notice ("RTJN") of the Retailer Services Agreement and amendment thereto ("RSA" together) between Defendant and Hitmobile, lnc„ dba T-Mobile ("HIT") is DENIED. Defendant requests the court take notice of the RSA pursuant to Evid. Code S 452(...
2023.11.02 Demurrer to TAC 729
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.11.02
Excerpt: ...ntentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Defendant demurs to the fifth cause of action for Negligent Infliction of Emotional Distress ("NIED"). The NIED claim in the TAC is unchanged from the SAC or FAC. Greater certainty and a more reasonable limit on the exposure to liability for negligent conduct is possible by limiting the right to recover for negligently caused emotional distress to p...
2023.11.02 Demurrer to SAC 109
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.11.02
Excerpt: ...ruth of contentions, deductions, or conclusions of fact or aw (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Defendants demurs to the sixth and seventh causes of action in the SAC. Cause of Action 6: Fraud Plaintiff's fraud cause of action requires allegations showing: 1) a misrepresentation; (2) knowledge of falsity; (3) intent to induce reliance; (4) actual and justifiable reliance; and (5) resulting damage. (Chapman v. Skype Inc. (2013) 220 Cal....
2023.11.02 Motion to Compel Further Responses 491
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.11.02
Excerpt: ...r sampling has been directed shall separately to each item or category of item by any of the follovnng: (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities. (2) A representation that the party lacks the ability to comply with th...
2023.11.02 Demurrer, Motion to Strike 931
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.11.02
Excerpt: ...t that might eventually form part of the plaintiffs prtnf need not be alleged." (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 851, 872.) uncertainty: A demurrer for uncertainty under Code of Civil Procedure 430.10(f) will be sustained only where the complaint is so pled that a defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are ...
2023.11.02 Motion for Summary Judgment, Adjudication 247
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.11.02
Excerpt: ...350(b). It also fails to cogently identify each of the issues to be so adjudicated. The Motion is thus effectively one for summary judgment against Plaintiffs. As noted in the 6/1/23 ruling, Plaintiffs were granted a continuance for this hearing, based on their claim that additional evidence was essential to their Opposition. The Court thus permitted supplemental briefing to "be confined to any new evidence obtained and its significance here." Th...
2023.11.02 Motion to Judicially Determine Meaning of Government Code 943
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.11.02
Excerpt: ... of Randy Mize. In June, 2023 Judge Washington commenced the application process to seek appointment as the Public Defender. On August 3, 2023, Judge Washington was informed that, after consultation with San Diego County Counsel, the County believed that he was ineligible to be appointed as Public Defender, because he had not been a practicing attorney for the year immediately proceeding appointment. (Washington Declaration, 10.) Govt. Cade 52770...
2023.10.26 Special Motion to Strike 888
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.10.26
Excerpt: ...protected speech or petitioning; and 2) lack even minimal merit. (Navellier v. Sletten (2002) 29 C4th 82, 88-89 ("Navellier"); Jarrow Formulas, Inc. v. LaMarche (2003) 31 C4th 728, 733.) "Only a cause of action that satisfies both prongs of the ant-SLAPP statute-i.e., that arises from protected speech or petitioning and lacks even minimal merit-is a SLAPP, subject to being stricken under the statute." (Navellier, supra, 29 Cal. 4th at 89.) "As us...
2023.10.26 Motions to Compel Further Responses 888
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.10.26
Excerpt: ...by February 1, 2022. As responses were served by email on February 2, 2022, they were a day late and Defendant's objections were waived. Defendant asserts the responses were timely but provides no argument or support for that assertion anv,'here in the papers. As to the Interrogatories, interrogatory responses "shall be as complete and straightforward as the information reasonably available to the responding party permits." (Ccyde Civ. Proc., S 2...
2023.10.26 Motion to Compel Further Responses 466
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.10.26
Excerpt: ...Court will exercise its discretion to consider the opposition. Defendant is admonished to abide by all filing deadlines for all future filings with this Court. Interrogatory responses "shall be as complete and straightforward as the information reasonably available to the responding party permits." (Code Civ. Proc., S 2030.220, subd. (a).) "If an interrogatory cannot be answered completely, it shall be answered to the extent possible." (ld., subd...
2023.10.26 Motion for Nonmonetary Sanctions 109
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.10.26
Excerpt: ...ant to Code Civ. Proc. S 2023.030, the court may issue terminating, evidentiary, issue, and/or monetary sanctions against a party engaging in conduct that is a misuse of the discovery process. Pursuant to section 2023.010, misuse of the discovery process includes: a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery. b) Using a dis...
2023.10.26 Motion for Attorney Fees 665
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.10.26
Excerpt: ...vides: "If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney s fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action." To recover attorney's fees, a preva-ling party bears the ...
2023.10.26 Demurrer, Motion to Strike 771
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.10.26
Excerpt: ...ion with the Demurrer, which reflects an attempt to present new evidence and argument, was untimely. The Court has thus elected not to consider it here. The Demurrer fails on the merits in any event. It is premised on the argument that the Seventh Cause of Acton fails as a matter of law because B&P Code S 6148(d) states an applicable exception, and that the appellate opinion issued on 11/20/20 found the exception applicable here. But while that e...
2023.10.19 Demurrer to FAC, Motion to Strike 797
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.10.19
Excerpt: ...urt can take judicial notce of the records in the pending action, or in any other action pending in the same court or any other court of record in the U.S. (Evid. Code 5452(d)) Accordingly, the Request for Judicial Notce is GRANTED. DEMURRER A demurrer is limited to the operative complaint's four corners, attached exhibits, and judicially noticeable matters. (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 4W.) "Because a demurrer ...
2023.10.19 Motion for Preliminary Injunction 458
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.10.19
Excerpt: ...ppears that when Mr. Park entered an appearance at the ex parte on 10/2/23 and filed an opposition to the ex parte on 9/29/23, he did so only on behalf of the individual defendants, Hyejin Yu and Michaela Kim. Accordingly, the motion is DENIED as to Liberte Hair Salon. With regard to the request for a preliminary injunction, "[t]he general purpose of a preliminary injunction is to preserve the status quo pending a determination on the merits of t...
2023.10.19 Motion to Set Aside Default 671
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.10.19
Excerpt: ... has been palpably and manifestly abused. The policy of the law is that controversies should be heard and disposed of on their merits." (Berman v. Klassman (1972) 17 Cal. App. 3d 909.) "'Section 473 of the Code of Civil Procedure is a remedial provision, and is to liberally construed so as to dispose of all cases upon their substantial merits and to give to the party claiming in good faith to have a substantial defense to the action an opportunit...
2023.10.19 Motion to Compel Furtheer Responses 466
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.10.19
Excerpt: ...late, on October 16, 2023. The opposing papers do not set forth good cause for the tardiness, nor is there any explanation whatsoever for counsel's neglect. (See Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 625, disapproved on other grounds by Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019.) The Court thus exercises its discretion to refuse to consider the late filed paper. (Cal. R. Ct. Rule 3.131W(d).) The Court finds good...
2023.10.12 Motion to Compel Further Responses 491
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.10.12
Excerpt: ... straightforward as the information reasonably available to the respond-ng party permits. (b) If an interrogatory cannot be answered completely, it shall be answered to the extent (c) If the responding party does not have personal knowledge sufficient to fully to an interrogatory, that party shall so state, but shall make a reasonable and gtncl faith effort to obtain the information by inquiry to other natural persons or organizations, except whe...
2023.10.12 Motion for Attorney Fees, to Tax Costs 126
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.10.12
Excerpt: ...baseless and pursued in bad faith, with defendant Interpersonal Management ("1M") to be awarded the same sum, jointly and severally, per its separate motion filed on the same statutory claim. The Lanham Act at 15 U.S.C. 1117(a) provides in pertinent part: "The court in exceptional cases may award reasonable attorney fees to the prevailing party." The parties do not dispute that those "exceptional circumstances" can be found when the non-prevailin...
2023.09.28 Motion for Summary Judgment 544
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.09.28
Excerpt: ...Jacobson Declaration, objections to 7b, 7f, and 9 are SUSTAINED. The remainder are overruled. This action concerns a single cause of action for professional negligence. "The elements of a cause of action for legal malpractice are (1) the existence of an attorney-client relationship or other basis for duty; (2) a negligent act or omission; (3) causation; and (4) damages." (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 863.) "'Proof of legal...
2023.09.28 Demurrer to FAC 195
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.09.28
Excerpt: ...ecovering damages from the hirer of the contractor for workplace injuries. (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594.) An exception to the Privette doctrine was set forth in Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198 and is based on the concept of negligent exercise of retained control. "[A1 hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained con...
2023.09.28 Demurrer to FAC 130
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.09.28
Excerpt: ...obable, 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 v. Sharp (1975) 50 cal.3d 904, 914; sosinsky v. Grant...
2023.09.28 Demurrer 741
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.09.28
Excerpt: ...l.) It is unclear from the Complaint how Defendant made harmful or offensive contact with Plaintiff's person. The demurrer to the first cause of action is thus SUSTAINED with 20 days leave to amend. Third Cause of Acton — IIED: Plaintiff fails to plead extreme and outrageous conduct directed at Plaintiff. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903; Chang v. Lederman (2009) 172 Cal.App.4th 67, 86.) The allegations that Defendant fa...
2023.09.21 Motion for Summary Judgment, Adjudication 191
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.09.21
Excerpt: ...gligence. As OCSSA is a public entity, liability for negligence must be authorized by statute. (Branch v. State of Cal. ex. rel. Department of Transportation (1984) 159 Cal.App.3d 340, 343; Gov. Code S 815.) Plaintiff's complaint alleges three statutory bases for OCSSA's liability—Government Code sections 815.2, 815.4, and vicarious liability for the acts or omissions of its employee or independent contractor under sections 815.2 and 815.4, and...
2023.09.21 Demurrer 564
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.09.21
Excerpt: ...ppearing on the face of the pleading or from other matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the 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 c...
2023.09.21 Motion to Compel Further Responses 491
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.09.21
Excerpt: ...ent possible. (c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party." (Civ. Proc. Code S 2030.220.) For moving to compel further responses (in relevant part): "(a...
2023.09.21 Motion to Quash Service of Summons for FAC 518
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.09.21
Excerpt: ... was given only to file a FAC against Tara Materials, Inc. (ROA 90) At the 2/2/23 hearing on the Motion to Quash, the matter was fully briefed, oral argument held, and the matter submitted. The Court then issued a final order quashing service based on a lack of personal jurisdiction over Mr. Twite as asserted in the Motion. This second action against Mr. Twite on the same claim is barred by res judicata. Direct estoppel arises when there is a sec...
2023.09.21 Motions to Compel Further Responses 323
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.09.21
Excerpt: ...d a series of Case Management Conferences were held and on 10/28/22, the case was set for a Court Trial on 4/15/24. All discovery and motions, including experts, are therefore tied to the new trial date of 4/15/24. Noor Must Serve Proper Verifications The "verification" used by Noor appears to be a form used by counsel to cover several types of litigation and documents where the user just has to check the boxes. For example, the form has a place ...
2023.09.14 Special Motion to Strike 175
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.09.14
Excerpt: ... of success." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) If the defendant meets his burden, then the plaintiff must show the "challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiffs showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment." (Bara', supra, 1 Cal.5th at 396.) The ...
2023.09.14 Motion to Rescind or Terminate 781
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.09.14
Excerpt: ...ence may be drawn from various sources, but the evidence relied upon must "speak to the court's concern whether the person in question is able to meaningfully take part in the proceedings." [Citation.] California law adopts a broad view of relevance, and a state court of appeal has emphasized a trial judge's "duty...to clearly bring out the facts." ' " (ld.) "The role of the guardian ad litem is to protect the incompetent person's rights in the a...
2023.09.14 Motion for Summary Judgment, Adjudication 502
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.09.14
Excerpt: ...nc. v. Cnty. of San Mateo (1995) 12 Cal. 4th 1110, 1117—18; Prue v. Brady Co./san Diego (2015) 242 Cal. App. 4th 1357, 1384-85.) The court finds the Complaint fails to state suffcient facts to constitute Plaintiff's three current causes of action ("COA") under the Song- Beverly Act ("Act") as the vehicle in question (used 2018 Chevrolet Camaro with VIN: IGIFB3DX4J0131584 ("Vehicle")) was purchased used. The Act applies only to purchases of new ...
2023.09.14 Motion for Preliminary Injunction 931
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.09.14
Excerpt: ...e injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued. [Citation.) Weighing these factors lies within the broad discretion of the superior court." (Smith v. Adventist Health Sys./W. (2010) 182 Cal. App. 4th 729, 749.) Symple asserts that it is likely to succeed on its two causes of action for Misappropriation of Trade Secrets and Unfair Competition. under the California ...
2023.09.14 Demurrer 145
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.09.14
Excerpt: ...rly pleaded (i.e., all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law). (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 952, 966-967; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) uncertainty A demurrer for uncertainty under Code of Civil Procedure section 430.10, subdivision (f) will be sustained only where the complaint is so poorly pled that a defendant cannot reasonably respond—i.e., he or she cannot re...
2023.09.07 Demurrer, Motion to Strike 970
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.09.07
Excerpt: ...68, fn. 1, citing Evid. Code, 5452, sbud. (c).) "Except as otherwise provided by statute...[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." (Gov. Code, 5815.) "In other words, direct tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and ...
2023.09.07 Demurrer to SAC 207
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.09.07
Excerpt: ... demurrer may be sustained when a cause of action is duplicative of another cause of action and thus adds nothing to the complaint byway of fact or theory of recovery. (Palm Springs Villas II Homeowners Inc. v. Parth (2016) 248 Cal.App.4th 268, 290) Here, Plaintiff's Second Cause of Acton for Negligent Maintenance is duplicative to her Eighth Cause of Action for Negligence. Both causes of action allege problems with waterproofing, mailbox, lockin...
2023.09.07 Demurrer 473
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.09.07
Excerpt: ....) Plaintiffs' well-pleaded facts are assumed to be true by the Court, but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment." (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.). Cause of Acton On...
2023.08.31 Motion to Continue Trial 357
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.08.31
Excerpt: ...clude “a party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts,” or the unavailability of a party, counsel, or expert due to death, illness or other excusable circumstance. The Court should consider all facts and circumstances relevant to the determination, such as proximity of the trial date, prior continuances, prejudice suffered, whether all parties have stipulated to a cont...
2023.08.31 Demurrer to FACC 407
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.08.31
Excerpt: ...f California, Inc. (1993) 14 Cal. App. 4th 612, 616.) Here, the causes of action pled against Cross- Defendant are not so unclear as to render them indecipherable. Accordingly, the demurrer based on uncertainty is OVERRRULED. First Cause of Action - Negligence Cross-Defendant again contends the negligence cause of action is barred by the Economic Loss Rule, as this action is purely a contractual dispute. The economic loss rule ordinarily prevents...
2023.08.31 Demurrer 912
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.08.31
Excerpt: ...raw v. Cal. Physicians' Service (2000) 81 Cal.App.4th 39, 42.) Plaintiffs' well-pleaded facts are assumed to be true by the Court, but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (G...
2023.08.24 Anti-SLAPP Motion, Demurrer 942
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.08.24
Excerpt: ... of the claim by establishing a probability of success.”  (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.)  If the defendant meets his burden, then the plaintiff must show the “challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a fav...
2023.08.24 Demurrer, Motion to Strike 292
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.08.24
Excerpt: ...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 v. Sharp (1975) 5...
2023.08.24 Motion for Relief from Waiver of Objections, to Compel Further Responses 002
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.08.24
Excerpt: ...es agreeing to produce (“Motion 2” below); (3) Plaintiff's Motion to Compel Further Responses to Requests for Admission (“RFAs”) Set One, for RFA 14 and to deem the RFAs admitted (“Motion 3” below); (4) Plaintiff's Motion to Compel Further Responses to Special Interrogatories (“SROGs”) Set One, for SROG Nos. 1-6, 21-24, 30-31, 33, 36, and 37-41 (“Motion 4” below); and (5) Plaintiff's Motion to Compel Further Responses to Form ...
2023.08.24 Motion for Summary Judgment 391
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.08.24
Excerpt: .... U.S. Bank Nat'l Ass'n (2012) 209 Cal.App.4th 182, 199.) The court's sole function on a motion for summary judgment is issue-finding, not issue- determination. The judge must simply determine from the evidence submitted whether there is a “triable issue as to any material fact.” (C.C.P. § 437c(c) (emphasis added); see Zavala v. Arce (1997) 58 Cal.App.4th 915, 926 (citing text); Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 (c...
2023.08.17 Special Motion to Strike 175
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.08.17
Excerpt: ...a probability of success.”  (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.)  If the defendant meets his burden, then the plaintiff must show the “challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment.”  (Bara...
2023.08.17 Demurrer, Motion to Strike 508
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.08.17
Excerpt: ... Elder Abuse. (Opp at 1:12-13) Plaintiffs also concede the propriety of Carol Wilson's demurrer to the SAC. Accordingly, the demurrer is SUSTAINED as to the 2nd and 4th causes of action and as to the claims made against Carol Wilson. The remaining issue in the demurrer is the Negligence cause of action asserted by Thomas and Jailyn Kramer (“Plaintiffs”) against the HOA. The issue is whether the Plaintiffs as tenants have standing to assert th...
2023.08.17 Demurrer 540
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.08.17
Excerpt: ...e, 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 v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky v. Grant (199...
2023.08.17 Demurrer 022
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.08.17
Excerpt: ... ambiguities can be clarified in discovery. (Khoury v. Maly's of Calif., Inc. (1993) 14 CA4th 612, 616.) Here, the Complaint adequately apprises the Defendant of the nature of and basis for the claim, for pleading purposes. The Demurrer, based on the statute of limitations and C.C.P. § 430.10(e), is OVERRULED. A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. (Lee v. Hanley (2015) ...
2023.08.10 Motion to Compel Arbtration, Strike Class Allegations, and Stay Action 023
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.08.10
Excerpt: ...loyment Arbitration Rules effective January 1, 2023. ROA 20 and 39. Both parties' requests are GRANTED. There is a Valid Arbitration Agreement Between the Parties. Defendant has met its initial burden of demonstrating the existence of an arbitration agreement between the parties. (Rosenthal v. Great Wester Fin. Securities Corp. (1996) 14 Cal. 394, 413; Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4 th 951, 972.) Defendant presents evid...
2023.08.10 Demurrer, Motion to Strike 447
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.08.10
Excerpt: ... (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the 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...
2023.08.03 Motion for Summary Judgment, Adjudication 725
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.08.03
Excerpt: ...evidence, which is used in California for disparate-treatment cases under FEHA, the employee must first present a prima facie case of discrimination. The burden then shifts to the employer to produce evidence of a nondiscriminatory reason for the adverse action. At that point, the burden shifts back to the employee to show that the employer's stated reason was in fact a pretext for a discriminatory act. The employer (moving party) must carry the ...
2023.07.27 Motion to Compel Further Responses to RFAs
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.07.27
Excerpt: ...r the age of 40 were hired into the same position at a lower salary. These are similar to the allegation in the complaint that Plaintiff was terminated and a younger person was hired into Plaintiff's position at a lower salary. Defendant's response to RFA Nos. 1 – 12 where identical: “RESPONDING PARTY incorporates by reference herein its preliminary statement and general objections and conditions. [RESPONDING PARTY objects to this request on ...
2023.07.20 Motion to Uphold Designation of Confidential Doc 860
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.07.20
Excerpt: ...ll future motions and oppositions. Here, Henkel seeks a protective order and enforcement under the parties' stipulated protective order (“SPO”). The designating party shall have the burden on any designation motion of establishing the applicability of any confidential designation. (SPO ¶ 6.) The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment...
2023.07.20 Motion for Summary Judgment 732
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.07.20
Excerpt: ...erican Honda Motor Co. (2002) 100 Cal.App.4th 1111, 1119; C.C.P. § 437c(c).) To satisfy this burden, a defendant must establish that one or more of the elements of a cause of action (a “COA”) cannot be established or that a complete defense exists to the cause of action. (Id.; C.C.P. § 437c(o).) If the defendant meets this burden, the burden shifts to the plaintiff to show a triable issue of material fact exists as to either the particular ...
2023.07.06 Motion to Compel Arbitration 237
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.07.06
Excerpt: ...ion to the motion;" Schoendorf v. U.D. Registry, Inc. (2002) 97 Cal.App.4th 227, 240, fn. 2 (citing text).) Generally, the moving party bears the burden of proving the existence of an agreement to arbitrate by a preponderance of the evidence. (Villacreses v. Molinari (2004) 132 Cal.App.4th 1223, 1230.) If met, the burden then shifts to the resisting party “to demonstrate that an arbitration clause cannot be interpreted to require arbitration of...
2023.06.22 Motions to Compel Arbitration 170
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.06.22
Excerpt: ...rovides for arbitration must either be stated verbatim in the petition or attached thereto. (C.R.C. 3.1330.) FCA and Dealer move to compel arbitration based on the arbitration agreement contained in the Retail Installment Sale Contract – Simple Finance Charge (with Arbitration Provision) (“RISC”) attached as Exhibit A to ROAs 33 and 38, respectively. As FCA and Dealer both acknowledge, neither is a signatory thereto. A nonsignatory seeking ...
2023.06.22 Motions for Judgment on the Pleadings 577
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.06.22
Excerpt: ...ction for Declaratory Relief. The plaintiff alleges that the employee sustained specific injury in 1996 and another specific injury in 2002. At the time of the 1996 Injury, the JPA was insured under a standard employers' workers compensation primary insurance policy issued to it by TAIC. (Complaint, ¶5.) At the time of the 2002 Injury, JPA was permissibly self-insured with an excess workers compensation insurance policy from American Manufacture...
2023.06.22 Motion to Compel Arbitration and Stay Action 268
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.06.22
Excerpt: ...nd the paragraph that provides for arbitration must either be stated verbatim in the petition or attached thereto. (C.R.C. 3.1330.) Defendants move to compel arbitration based on the arbitration agreement contained in the Retail Installment Sale Contract (“RISC”) attached as Exhibit 1 to the Polyakov Declaration. As a preliminary matter, Plaintiffs' object to Exhibit 1 and ¶ 2 of the Polyakov Declaration, based in part on authentication and ...
2023.06.22 Motion for Summary Judgment 644
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.06.22
Excerpt: ...4th 308, 316.) Yamaha's requests for judicial notice are GRANTED. (Evidence Code §§ 452(a) and (d).) Yamaha argues that Cal. Code Civ. Proc. section 361 mandates application of Tennessee's one-year statute of limitations for personal injury claims to Plaintiff's action. The underlying facts are undisputed. Plaintiff, a Tennessee resident at the time of the accident and when this lawsuit was filed, was injured in a single-vehicle golf cart accid...
2023.06.22 Motion for Sanctions 908
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.06.22
Excerpt: ...intiff to be filed no later than 05/25/23, a supplemental opposition to be filed no later than 06/01/23, and a supplemental reply brief to be filed no later than 06/08/23. The court specifically noted, “[t]he Court will not consider any additional pleadings not filed by the deadlines listed above.” Instead, Defendants filed their supplemental opposition on 06/09/23, and only state the delay was, “the result of inadvertent mis-calendaring by...
2023.06.15 Motion to Vacate Judgment and Default 300
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.06.15
Excerpt: ...party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” “Where a party moves under section 473, subdivision (d) to set aside “a judgment that, though valid on its face, is void for lack of proper service, the courts have adopted by analogy the statuto...
2023.06.15 Motion for Summary Adjudication 908
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.06.15
Excerpt: ...firmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. 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. (2) A motion for summary adjudication may b...
2023.06.08 Motion to Exclude Testimony at Trial 411
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.06.08
Excerpt: ...r in evidence at trial; or (2) a statement that the parties does not presently intend to offer the testimony of an expert witness. Under subdivision (c) of section 2034.260, if a party designates an expert witness, the exchange must also include a declaration by the attorney for the party (or by a self- represented litigant) setting forth the qualifications of each expert, the general substance of the expert's anticipated testimony, a representat...
2023.06.08 Motion for Summary Judgment, Adjudication 499
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.06.08
Excerpt: ...ee also Fielder v. City of Glendale (1977) 71 Cal.App.3d 71.) The issue of trivial defects is one of duty and breach which plaintiff must plead and prove, per Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 26-27. “The trivial defect doctrine originated to shield public entities from liability where conditions on public property create a risk ‘of such a minor, trivial or insignificant nature in view of the surrounding circ...
2023.06.08 Motion for Summary Judgment, Adjudication 385
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.06.08
Excerpt: ... of persuasion thereon. (See Evid. Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.) Defendant moves for summary judgment/adjudication on both causes of action (“COA”) No. 1 – Motor...
2023.06.08 Demurrer, Motion to Strike 691
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.06.08
Excerpt: ...prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) A written contract must be pled verbatim in the body of the complaint, be attached to the complaint and incorporated by reference, or be pled according to its legal effect. (Bowden v. Robinson (1977) 67 Cal.App.3d ...
2023.06.01 Motion for Leave to File Amended Answer 323
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.06.01
Excerpt: ..., if any, and where, by page, paragraph, and line number, the deleted allegations are located; and (3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. (b) Supporting declaration. A separate declaration must accompany the motion and must specify: (1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3...
2023.06.01 Motion for Summary Judgment 520
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.06.01
Excerpt: ... necessary discovery is DENIED. "[I]f it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion...
2023.06.01 Motion to Compel Further Responses 092
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.06.01
Excerpt: ...a good faith attempt to resolve "each issue presented by the motion." There must be a serious effort at negotiation and informal resolution. (Clement v. Alegre (2009) 177 Cal. App. 4th 1277, 1294.) "[T]he law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate." (ld.) The particular level of effort required in each case depends on the circumstances. (Obregon v. Superior Court (1998) 67 Cal. App. 4th...
2023.05.25 Motion for Turnover Order, to Charge Interest of Judgment Debtor 570
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.05.25
Excerpt: ...usa Madain to Assign its Rights in its Accounts Receivable, filed on 10/21/22 ("Motion 3" below); (4) the Motion For an Order Compelling Judgment Debtor The Grand Theater, Inc. to Assign its Rights in its Accounts Receivable, filed on 10/21/22 ("Motion 4" below); and (5) the Motion For an Order Compelling Judgment Debtor The Grand Theater, Inc. to Serve Responses to the Post-judgment Requests for Production of Documents, filed on 1/6/23 t Motion ...
2023.05.25 Motion for Summary Judgment, Adjudication 736
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.05.25
Excerpt: ...ot as to the truth of any disputed facts asserted therein. (Evid. Code 5 452(d); Fontenot v. Wells Fargo Bank, NA (2011) 198 Cal.App.4th 256, 264; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.) In ruling on a motion for summary judgment or summary adjudication, the court must "consider all of the evidence" and all of the "inferences" reasonably drawn therefrom (CCP 5 437c(c)) and must view the evidence and inference...
2023.05.25 Motion for Summary Judgment 474
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.05.25
Excerpt: ...he cause of action. (ld.; C.C.P. 5 437c(o).) If the defendant meets this burden, the burden shifts to the plaintiff to show a triable issue of material fact exists as to either the particular COA or the proffered defense thereto. (ld.) The plaintiff must set forth specific facts demonstrating a triable issue of material fact exists. (ld.; C.C.P. 5 437c(o); Aguilar v. Atlantic Richfield Co. (2001) 25 cal.4th 826, 843.) Here, MP has presented evide...
2023.05.25 Demurrer, Motion to Strike 753
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.05.25
Excerpt: ...(e), a person who utilizes the services of an unlicensed contractor may bring an action in any court of competent jurisdiction in this state to recover all compensation paid to the unlicensed contractor for performance of any act or contract." B usiness and Professions Code 57026 defines a "contractor" as a person who does work to "alter add to improve" a structure. The issue comes down to whether or not plaintiff has alleged that the defendant w...
2023.05.18 Demurrers, Motions to Strike 349
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.05.18
Excerpt: ... Steele is to file and serve an answer to the Complaint within 10 days. Ashbrook's Demurrer and Motion to Strike As to the first cause of action, while the allegations appear sufficient to plead isolation (see Compl. 23-25), Ashbrook is correct that the Complaint fails to include facts demonstrating that Plaintiff experienced physical harm, pain or mental suffering as a result of the alleged isolation by Ashbrook. (See We/f. & Inst. Code 55 15610...
2023.05.18 Demurrer to SAC 445
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.05.18
Excerpt: ...000) 81Cal.App.4th 39, 42.) Plaintiffs' well-pleaded facts are assumed to be true by the Court, but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment." (Goodman v. Kennedy (1976) 18 cal.3d 335,...
2023.05.11 Petition to Compel Arbitration 696
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.05.11
Excerpt: ...troversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for rescission of the agreement. . . (Civ. Proc. Code 5 1281.2.) "Arbitration is favored in this state as a voluntary means of resolving disputes, and this voluntariness has been its bedrock justification. As we stated recently: "[P]olicies favoring ...
2023.05.11 Motions to Compel Arbitration 281
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.05.11
Excerpt: ...ce of a valid arbitration agreement, before arbitration can be compelled. (See 9 U.S.C. 52). "Cl]t is a cardinal principle that arbitration under the FAA 'is a matter of consent, not coercion.'" (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) "Thus, 'a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.'" (ld.) "If a party to a civil action asks the...
2023.05.11 Motion for Summary Adjudication 358
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.05.11
Excerpt: ...f action" entitling him or her to judgment. (CCP 437c(p)(1); see Hunter v. Pacific Mechanical Corp. (1 gg5) 37 Cal.App.4th 1282, 1287 (citing text) (disapproved on other grounds in Aguilar v. Atlantic Richfield Co. (2001) 25 cal.4th 826); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. co. (2010) 186 cal.App.4th 383, 388.) Breach of Guaranties As to the third cause of action, Plaintiff has presented evidence to show: (1) that on or about February 2...
2023.05.11 General and Special Demurrers 127
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.05.11
Excerpt: ... order to turn over monies had and received; (8) conversion; (g) fraud and deceit; (10) constructive fraud; (11) violation of Penal Code 496; and (12) fraudulent conveyance. Moving defendants contend that all of the causes of action are deficient and uncertain because the causes of action in the FAC all assume the existence of a trust or estate planning vehicle that was established outside of California and do not support application of Californi...
2023.05.11 Demurrer, Motion to Strike 729
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.05.11
Excerpt: ... SUSTAINED with 15 days leave to amend as to the Second and Fifth Causes of Action and OVERRULED as to the Fourth Cause of Action. Cause of Action 2: Elder Abuse Under Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-07, a plaintiff pleading a claim under the Elder Abuse Act must plead that defendant 1) had responsibility for meeting the basic needs of the elder or dependent adult, 2) knew of conditions that made the...
2023.05.04 Motion for Summary Judgment, Adjudication 426
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.05.04
Excerpt: ...ompel arbitration does not automatically stay ongoing proceedings; the party seeking arbitration must request one." (OTO, L.L.C. v. Kho (2019) 8 Cal. 5th 111, 140.) The closest thing to a request to stay this matter comes from the "Notice Of Commencement Of Arbitration And Request For Stay Of Entire Action" ("Notice"), in which Plaintiff included one sentence requesting a stay. However, a party requesting a stay is required to move the court for ...
2023.04.27 Motion to Dismiss Complaint 385
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.04.27
Excerpt: ...d an order that sustained the defendants' unopposed demurrer to the complaint without leave to amend. The Court heard oral argument on the demurrer on December 15, 2022 and the minute order of that day indicates that the Court determined, among other things, that "Ct)he entire complaint and all three causes of action are defective because plaintiff lacks standing to bring this action." The Court added: The documents for which judicial notice is r...
2023.04.27 Motion to Compel Arbitration 913
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.04.27
Excerpt: ...ed Sales Contract, either as a third-party beneficiary or pursuant to equitable estoppel. Consequently, Defendant failed to meet its burden to establish an applicable arbitration agreement. Preliminarily, both the Federal Arbitration Act and the California Arbitration Act require the existence of a valid Arbitration Agreement, before arbitration can be compelled. (See g U.S.C. 52 and C.C.P. 51281.2). "If a party to a civil action asks the court t...
2023.04.27 Motion for Summary Adjudication 824
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.04.27
Excerpt: ...ative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for dama...
2023.04.27 Demurrer, Motion to Strike 753
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.04.27
Excerpt: ...t as provided in subdivision (e), a person who utilizes the services of an unlicensed contractor may bring an action in any court of competent jurisdiction in this state to recover all compensation paid to the unlicensed contractor for performance of any act or contract." Business and Professions Code 57026 defines a "contractor" as a person who does work to "alter add to improve" a structure. The issue comes down to whether or not plaintiff has ...
2023.04.20 Motion to Compel Deposition 659
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.04.20
Excerpt: ....290(b)(6).) It does not matter that the newly added party is represented by the same counsel as another party that took the prior deposition. The code is specific to the party, not to party counsel. Plaintiff has not cited to any case or statute that supports her contention that newly added DWIC cannot take its own deposition of Plaintiff even though all defendants in this action are currently represented by the same counsel. The court previousl...
2023.04.20 Motion to Compel Arbitration and Stay Action, to Appoint Receiver 177
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.04.20
Excerpt: ...ion process. When a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a prep...
2023.04.13 Motion for Summary Judgment 994
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.04.13
Excerpt: ...��Summary judgment is appropriate where ‘all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'” (Wicks, supra, 49 Cal.App.5th 875, citing C.C.P. §437c(c).) Once the 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 a...
2023.04.13 Demurrer, Motion to Strike 846
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.04.13
Excerpt: ...ar statute of limitations set forth in C.C.P. § 340.5. Medlink cites Canister v. Emergency Ambulance Service (2008) 160 Cal.App.4th 388, in support of its argument that an ambulance and its driver, transporting a patient for medical treatment (as Medlink contends was done in this case), come within the purview of the definition of a health care provider within the meaning of C.C.P. § 340.5. In Canister, the court held that emergency medical tec...
2023.04.13 Demurrer, Motion to Strike 797
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.04.13
Excerpt: ...ernmental entity can request the court to take judicial notice under Evidence Code section 452, subdivision (c) that the entity's records do not show compliance.” (Gong v. City of Rosemead (2014) 226 Cal. App. 4th 363, 376.) “The court may take judicial notice of the filing and contents of a government claim, but not the truth of the claim.” (Gong v. City of Rosemead (2014) 226 Cal. App. 4th 363, 369, Fn 1.) Accordingly, the Request for Jud...
2023.04.06 Motions to Compel Arbitration 636
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.04.06
Excerpt: ...as manufactured by FCA. Plaintiff alleges the vehicle has various defects. In addition, Plaintiff also alleges that on at least one occasion, she took the vehicle to Lampe Chrysler Dodge Jeep Ram ("Lampe") for repair and that Lampe negligently repaired the vehicle. The arbitration agreement at issue at issue is found in the Retail Installment Sale Contract ("RISC") attached as Exhibit A to the Rogerson Declaration. The RISC is between Wood, Brook...
2023.04.06 Motion to Compel Deposition 349
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.04.06
Excerpt: ...or, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying." (CCP 2025.280(a).) On November 2, 2022, Ashbrook served a Notice of Deposition of Arnold for November 18, 2022. (Conti Decl., Ex. A.) No formal written objection was served. (Conti Decl., 113.) Arnold's conservator, Jonathan Starr ("Jonathan"), argues in the oppo...

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