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2018.6.21 Demurrer 357
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.6.21
Excerpt: ...vide UIM coverage. Before the Court this day is a demurrer to the Complaint by the employer, Goodyear. Pursuant to CCP §1060, any person interested under a written instrument or contract “may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action [for] a determination of any question of construction or validity arising under the instrument or contract.” The essential elemen...
2018.6.21 Demurrer 674
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.6.21
Excerpt: ... statute of limitations, offset). The operative pleading is difficult to navigate, in large part because it is clearly intended as a preemptive strike to any action taken by defendant to collect on the debt. The essential elements of a declaratory relief cause of action are (1) an actual controversy between the parties regarding contractual or property rights (2) involving continuing acts/omissions or future consequences, (3) which has sufficient...
2018.6.14 Motion to Strike 138
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.6.14
Excerpt: ...Complaint ¶¶ 19; 152 ln. 21-23; 160 ln. 23-24; 177 ln. 23-13; 185 ln 15-16) Kaura has provided no arguments at all as to why those items should be struck from the Complaint. Therefore, the request to strike these items is also DENIED. ...
2018.6.14 Motion to Quash Records Subpoenas 819
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.6.14
Excerpt: ...is in the opposition papers. To the extent that the Defendants want Plaintiff to identify trade secrets, they can bring an independent motion that focuses on the particular issue. The present generalized request by Defendants for a blanket protective order against discovery, in general, is DENIED at this time, but it is without prejudice to a different motion by the Defendants. In the 4th and 5th causes of action of the FAC, which are for breach ...
2018.6.14 Motion to Continue Trial, to Compel Neuro Exam 257
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.6.14
Excerpt: ...f the requested relief is granted. The Court will therefore GRANT the Motion, and in light of Plaintiff's request, is inclined to reset the trial date to a date in January 2019. The parties should be prepared to discuss specific dates at the time of the hearing. (2) The Motion to Compel Neuropsychological Exam of Plaintiff is GRANTED. Good cause is shown for the requested relief, as Plaintiff has put her mental condition in controversy. (Renaud D...
2018.6.14 Motion for Summary Judgment 662
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.6.14
Excerpt: ... Medical Center, Sea Cliff Healthcare Center, and Kaiser Permanente, as well as the autopsy report, deposition of Luis Garcia, M.D., and the expert declarations of Alan Brown, M.D., and Daniel Wohlgelernter in support of their respective client's Motions for Summary Judgment. Wachtel Dec. ¶ 5. Dr. Wachtel opined that the care and treatment of the decedent while she was under the care of Dr. Hosseinian and Dr. Nguyen complied with the requisite s...
2018.5.17 Motion for Change of Venue 648
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.5.17
Excerpt: ...ion”) with the Court and served parties via mail, with a hearing date of 05/17/18. This is improper filing and service of a motion. Pursuant to C.C.P. § 1005(b), “all moving and supporting papers shall be served and filed at least 16 court days before the hearing.” [Emphasis added.] C.C.P. § 1005(b). The Motion was filed one court day after the filing deadline of 04/25/18, and should have been rejected. Further, if notice is served by mai...
2018.5.17 Motion to Compel Arbitration 012
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.5.17
Excerpt: ...agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. . .” Civ. Proc. Code § 1281.2. “[B]oth California and federal courts have recognized limited exceptions to this rule, allowing nonsignatories to an agreement containing an arbitration clause to . ....
2018.5.17 Motion to Bifurcate 004
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.5.17
Excerpt: ... the last decade embroiled in hostilities. Before the Court this day is a motion to plaintiff to bifurcate the defamation cause of action currently stayed on appeal, and lift or narrow a case wide stay to permit all but the defamation cause of action to proceed. A brief review of this Court's history discloses that the premise behind the pending motion is fatally flawed. On 11/10/16, this Court granted defendant's (Frank) special motion to strike...
2018.5.10 Application for Writ of Possession 813
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.5.10
Excerpt: ... application papers were filed, the court received a declaration from plaintiff's counsel stating that the defendant Maxwell was no longer apparently present at a former address in Irvine, California. Further, the application papers and summons were later served on the Defendant more recently, at a residential address in Sunset Beach, California according to a proof of service (see Register of Action # 37 and 48). The Court will hear from the par...
2018.5.10 Motion to Compel Arbitration 110
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.5.10
Excerpt: ...tration 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.4th 633, 640; Brodke v. Alphatec Spine Inc. (2008) 160 Cal.App.4th 1569, 1575. The burden rests with the party seeking to compel arbitration to establish these three...
2018.5.10 Motion to Continue Trial 108
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.5.10
Excerpt: ...ue. First, discovery is no longer automatically extended when the trial date is continued. CCP §2024.020(b). Instead, the party making such a request must demonstrate necessity, due diligence, absence of prejudice, and a good faith meet and confer effort to resolve beforehand. CCP §2024.050(a)-(b). Defendants did not submit a motion pursuant thereto to have discovery extended. Moreover, the declaration filed in support of the motion to continue...
2018.5.10 Motion to Quash Subpoena 772
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.5.10
Excerpt: ...ction at trial on 03/19/18, but trial has since been continued. However, since there is a risk of this issue recurring, what with the subpoenas being recently re-issued with the new trial date, this Court will exercise its discretion to reach the motion on the merits. There are two subpoenas at issue, one to plaintiff Palo Capital, and the other to cross- defendant Kevin O'Grady. Both request production of basically the same types of documents pe...
2018.5.10 Motion to Tax 261
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.5.10
Excerpt: ...ty, other than the memorandum of costs, is her declaration. The only testimony provided in the declaration is the defendant's assertion that "Defendants never served a Code of Civil Procedure Section 998 offer in this action.” Williams Dec. ¶ 2. The assertion is irrelevant because the moving party does not challenge expert witness fees, interest or any costs related to a 998 Order. The motion properly challenges and the plaintiff acknowledges ...
2018.5.10 Motion to Quash Deposition Subpoenas 271
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.5.10
Excerpt: ...oad, Anaheim, California 92806; Los Alamitos Medical Center - X-rays, 3751 Katella Avenue, Los Alamitos, California 90720 is DENIED. AUTHORITIES: Although a plaintiff suing for personal injuries waives the physician-patient privilege (Ev.C. § 996), plaintiff still has a right of privacy in his or her medical records. Disclosure thereof depends upon balancing the need for discovery against the need for confidentiality. Ordinarily, discovery of re...
2018.5.3 Motion for Leave to File Complaint 403
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.5.3
Excerpt: ...vail (see ROA 423). Four days after that, plaintiff tried once again to get past the clerk gate, without success (ROA 426). With all due respect to our own, the clerk of the court had no legal basis for rejecting plaintiff's attempted filings. As before, plaintiff is hereby granted leave to file the 5th Amended Complaint. Chicago's demurrer and motion to strike are thus moot. ...
2018.5.3 Motion to be Relieved as Counsel 189
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.5.3
Excerpt: ...proposed Order Granting Attorney's Motion to Be Relieved as Counsel- Civil (form MC-053). See, CRC 3.1362(c) and (e). Additionally, the Notice and Motion must be served on the client and on all other parties. CRC 3.1362(b). Attorney Tamborini filed and served the Notice of Motion and Motion (Form MC-051), but failed to file and serve form MC-052 and form MC-053, as required by CRC 3.1362(e) Additionally, service is improper as the moving paper wa...
2018.5.3 Motion to Compel Production 473
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.5.3
Excerpt: ...'s order. Review 1) Mental Health Records The California Supreme Court has recognized the importance of effective treatment of mental illness, and in protecting the right of patient privacy in relation to mental health records. Tarasoff v. Regents of Univ. of California (1976) 17 Cal. 3d 425, 440. “Evidence Code section 1014 provides that a patient has a privilege to refuse to disclose, and to prevent another from disclosing, confidential [] co...
2018.5.3 Motion to Seal Records 772
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.5.3
Excerpt: ...which codify the sealed records rule. This would actually be the third time this Court has been asked to “seal” from public view something pertaining to the non-party clients these parties are fighting over. It seems a recurring theme that both sides are attempting to “seal” client identities, while at the same time forcing the other side to disclose client identities. The dispute here is strange. On 12/19/17, plaintiff motioned this Cour...
2018.5.3 Motion to Strike 138
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.5.3
Excerpt: ...�Motion”) is continued to 06/07/18 to allow parties to properly meet and confer and file the necessary supporting documents to their Motion to Strike as required by C.C.P. § 435.5. Parties are to meet and confer no later than 05/28/18. MP is to file and serve the required documents no later than 05/31/18. Additionally, MP is to serve its Motion on defendant Charles A. Jansen, O.D., A Professional Corporation, doing business as Charles Jansen O...
2018.5.3 Motion for Summary Judgment 625
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.5.3
Excerpt: ...l burden of presenting evidence which supports a finding that there exists no triable issue of fact which would subject Defendant to liability. The defendant Karim has presented evidence which supports a finding that that he did not have or receive any money from Defendant Mahfuz Alam. The defendant Karim has also presented evidence which supports a finding that he and defendant Alam did not engage in any conspiracy to commit fraud against Plaint...
2018.4.26 Motion to Dismiss or Stay Action 547
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.26
Excerpt: .... Plaintiffs dispute Defendants' claim that the FAAs apply here. Plaintiffs Liu and Zhao concede that they signed the Account Application. (Liu Decl. ¶ 3; Zhao Decl., both at ¶ 3, conceding same.) In their Opposition, they argued the FAA could not apply to them as it was dated 12/18/14, and so did not exist when they signed their Application. On reply, Defendants conceded that for Liu and Zhao, the wrong version was attached to the Motion, and ...
2018.4.26 Motion for Summary Judgment 662
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.26
Excerpt: ...s medical records from Orange Coast Memorial Medical Center; decedent's medical records from Healthcare Partners Medical Group; decedent's medical records from Kaiser Pennanente; decedent's medical records from Sea Cliff Healthcare Center; decedent's medical records from Huntington Beach Hospital; decedent's autopsy report; decedent's death certificate; and the amendment to decedent's death certificate and opined that when providing care and trea...
2018.4.26 Motion to Approve Final Report of Revenue and Expenses 978
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.26
Excerpt: ...e evidence. The defendants have filed a “Financial Statement” prepared and verified by defendant. The Financial Statement is not supported by admissible evidence. Defendants Douglas and Bonnie Stewart, request that the Court issue the following Order: 1. To Pay Defendants, Douglas and Bonnie Stewart, in the amount of $15,408.30 from the Partnership funds currently held in Trust by Attorney Neil Pedersen for their expenses incurred on behalf o...
2018.4.26 Motion to Compel Arbitration 660
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.26
Excerpt: ...Mansouri v. Superior Court (2010) 181 Cal.App.4th 633, 640; Brodke v. Alphatec Spine Inc. (2008) 160 Cal.App.4th 1569, 1575. The burden rests with the party seeking to compel arbitration to establish these three prerequisites by a preponderance of the evidence. Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972. The scope of the DRA is admittedly broad, covering the claims in dispute herein and requiring arbitration thereof. The...
2018.4.26 Motion to Consolidate 622
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.26
Excerpt: ...d to avoid unnecessary costs or delay.” C.C.P. § 1048(a). Under CRC Rule 3.350: “(a) Requirements of motion (1) A notice of motion to consolidate must: (A) List all named parties in each case, the names of those who have appeared, and the names of their respective attorneys of record; (B) Contain the captions of all the cases sought to be consolidated, with the lowest numbered case shown first; and (C) Be filed in each case sought to be cons...
2018.4.26 Motion to Continue Trial, Compel Production, for Sanctions or Attorney Fees 369
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.26
Excerpt: ...t to provide any responses. Plaintiff's responses are therefore late, and Defendant's Motion was appropriate. Further, as Plaintiff failed to provide timely responses, all objections are waived. C.C.P. § 2031.300(a). Defendant's unopposed Motion to Compel Responses to Request for Production, Set One, is GRANTED. Plaintiff is to provide verified responses, without objection, within 15 days of the date of hearing. #3 - Motion to Compel Answers to ...
2018.4.26 Motion for Summary Judgment 202
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.26
Excerpt: ...nopposed by either defendant, one of whom is representing herself and the other a non-represented entity. Nonetheless, the motion must be DENIED on procedural grounds. First, the Notice is defective. Though phrased on a motion for summary judgment, it actually reads as one for summary adjudication. Where summary adjudication is sought, the notice must specify the “specific cause of action” sought to be adjudicated. CRC 3.1350(b). In addition,...
2018.4.26 Demurrer 883
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.26
Excerpt: ...te facts sufficient to constitute a cause of action as to the 2nd, 3rd and 8th causes of action. SUSTAINED on grounds of failure to state facts sufficient to constitute a cause of action as to the 1st, 4th, 5th, 6th, and 7th cause of action as follows: As to the 1st cause of action for declaratory relief, plaintiffs fail to plead facts showing the existence of an actual controversy involving justiciable questions relating to plaintiffs' and defen...
2018.4.26 Demurrer 147
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.26
Excerpt: ...�new litigation” to PJ; b. PJ approves, then instructs clerk of the court to file the new lawsuit; c. If clerk accidentally files without PJ consent, lawsuit “shall be automatically dismissed unless the plaintiff within 10 days of the filing of that notice obtains an order from the presiding justice or presiding judge permitting the filing of the litigation.” §391.7(c) Here, plaintiff timely submitted her proposed complaint for PJ approval...
2018.4.26 Demurrer, Motion to Strike 908
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.26
Excerpt: ...ave a chest intubation and a catheter in her chest cavity to resolve the pneumothorax. Plaintiff was hospitalized for 4 days. Defendant is demurring to the 2 nd, 3 rd and 4 th causes of action on grounds of failure to state facts sufficient to constitute a cause of action and uncertainty. As to C/A #2, the Court finds that the elements of CACI 530A are sufficiently pled and Plaintiff has failed to state how and where this C/A is uncertain. The de...
2018.4.19 Motion for Trial Preference 271
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.19
Excerpt: ...ates that she is 1) 72-years old; 2) Plaintiff has a substantial interest in the action as the sole plaintiff; and 3) Plaintiff's health such that a preference is necessary to prevent prejudicing the party's interest in the litigation as noted in the Declaration of Shahab Attarchi, M.D. Defendants' evidentiary objections to the Declaration of Mark A. Schadrack are SUSTAINED. Defendants' evidentiary objections to the Declaration of Shahab Attarchi...
2018.4.19 Motion for Attorney Fees 156
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.19
Excerpt: ... the parties costs of partition, including “reasonable attorneys' fees incurred or paid by a party for the common benefit.” The key, of course, is whether the services provided by plaintiff's counsel were incurred for the “common benefit” of plaintiff and defendant. Orien v. Lutz (2017) 16 Cal.App.5th 957, and Lin v. Jeng (2012) 203 Cal.App.4th 1008, make plain that this Court ought to consider the totality of the circumstances in decidin...
2018.4.19 Demurrer, Motion to Strike 360
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.19
Excerpt: ...ting (attached as Exhibit A). Since there is no statute of limitations concern, and consideration is obvious, it is unnecessary to engage further to determine how the gravamen of the agreement came to be (oral or written). Whether it is written, oral, or implied, the elements for breach of contract are: (1) parties capable of contracting, (2) mutual consent, (3) a lawful object, (4) sufficient cause or consideration, (5) plaintiff's performance o...
2018.4.19 Request for Production of Docs 754
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.19
Excerpt: ...ns do have a right to privacy, it is not a constitutional right. The corporate right to privacy is a lesser right than that held by human beings and is not considered a fundamental right. (Internal citations omitted.)” SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal. App. 4th 741, 756. “Because the corporate privacy right is not constitutionally protected, the issue presented in determining whether [the Party's] requests for productio...
2018.4.19 Demurrer 342
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.19
Excerpt: ...omplaint alleges a written contract existed, it failed to provide proof of the contract or to assert any of the terms of the contract, failed to state how Plaintiff performed under the contract or her excuse for nonperformance, or how Plaintiff's alleged damages are related to the contract. Further, the Complaint is uncertain as to defendants Hai N. Duong, Cuong Nguyen, and Phoung Thi Kim Dang, as it fails to plead facts showing that a contract e...
2018.4.12 Motion to Set Aside Dismissal 957
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.12
Excerpt: ...f to set aside this Court's order dismissing the action. Since defendant agreed to settle, and has now reneged on that agreement, the dismissal ought to be set aside. The question then remains what to do with the case. Plaintiff wants to re-open everything and go after the restaurant owner personally because he feels that earlier representations regarding the restaurant's solvency, liquidity and/or insurability were false. This plaintiff cannot d...
2018.4.12 Motion to Quash 772
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.12
Excerpt: ...me. There are two subpoenas at issue, one to defendant Michael Cannivet and the other to the custodian of records for non-party Silverlight Asset Management. Both request production of the same thing: “Documents sufficient to identify clients known to Silverlight Asset Management, LLC to have formerly been clients of Palo Capital, to which Silverlight Management, LLC provided investment advisory services, at any time after December 2, 2016.” ...
2018.4.12 Motion to Dismiss Complaint 202
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.12
Excerpt: ...985) 38 Cal.3d 18, 30; Carlton v. Quint (2000) 77 Cal.App.4th 690, 697; Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1288-1289.) Directions to Self-Represented Party (Ms. Galian) The Court orders Ms. Galian to include a proof of service with future papers that are filed with the court. A form of Proof of Service-Civil is available at the website of the California Courts (see http://www.courts.ca.gov/forms.htm). Further, Ms. Galian is directed to...
2018.4.12 Motion for Summary Judgment 662
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.12
Excerpt: ...range Coast Memorial Medical Center, Kaiser Permanente, Huntington Beach Hospital, and Sea Cliff Healthcare and opined that Defendant Arvind Nirula, M.D complied with the applicable standard of care at all times and no act or omission on the part of Arvind Nirula, M.D caused or contributed to Ms. Garcia's death. Brown Dec. ¶¶ 8-10. Dr. Brown further noted that although Arvind Nirula, M.D is associated with California Heart Associates, all of Ms...
2018.4.12 Motion for Sanctions 453
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.12
Excerpt: ... “Emily Graves”, with whom MP's counsel has communicated, is an authorized agent for “Vape It Up.” (See Corp. Code § 17701.16, CCP §416.10 et seq.; CCP §2020.220(a)(2). See also CRC 3.1346.) The court notes, an entity called Vapeitup LLC or Vape It Up LLC has been named in certain pleadings in the case. Would it be the same entity as the deponent here? If so, in information that is publicly available on the website of the California Se...
2018.4.12 Objections to Order for Preliminary Injunction 769
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.12
Excerpt: ...enting, allowing, assisting, conducting, permitting, or in any way granting authority to make any use of the Property, or any other location in the City of Huntington Beach, to dispense or distribute marijuana and/or any products containing marijuana;..” (Proposed Order, 2:14-17) It should read: The Court granted Plaintiffs preliminary injunction prohibiting “Leasing, renting, allowing, or in any way granting authority to make use of the prem...
2018.4.12 Demurrer, Motion to Strike 763
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.12
Excerpt: ...ction by plaintiff Wyatt. Defendant's challenge to this cause of action is improperly based on extrinsic evidence. Defendant's request for judicial notice is denied. OVERRULED as to the 4th cause of action. Although false imprisonment is an intentional tort because it entails an intentional act resulting in confinement, it can arise through negligence. (Lyons v. Fire Ins. Exchange (2008) 161 Cal.App.4th 880, 888.) The facts pled sufficiently supp...
2018.4.12 Motion to Compel Arbitration 012
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.12
Excerpt: ...dant Nu Flow America, Inc., for installation of cured in-place pipe (“CIPP”) restoration process for repair of potable water copper piping via epoxy relining on plaintiffs' property. As noted, plaintiffs are both self represented, however plaintiff Erin Chwialkowski did not sign the complaint. Additionally, she did not sign the 02/08/18 Amendment to Complaint (Doe 1) identifying Nu Flow America, Inc., as a DOE defendant. Pursuant to CCP § 12...
2018.4.12 OSC Re Dismissal 019
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.12
Excerpt: ... POS in the court's file. The Declaration of plaintiff's father, Harold Beverly, confirms that the address where the plaintiff was served by certified mail is the last known address for the plaintiff. The declaration also confirms that the declarant has not had verbal or physical contact with the plaintiff since January 2016. The plaintiff's father's declaration establishes that plaintiff cannot be located despite diligent efforts. Therefore, the...
2018.4.5 Motion to Set Aside Default 682
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.5
Excerpt: ... and judgment is void. The Defendant Moshe Ninio has established that he lacked notice of the action in time to defend and that such “was not caused by his avoidance of service or inexcusable neglect.” DEFENDANT MOSHE NINIO'S MOTION: When service of a summons has not resulted in actual notice to defendant in time to defend the action, defendant may move the court to set aside the default and any judgment thereon and for leave to defend the ac...
2018.4.5 Motion to Withdraw as Attorney 651
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.5
Excerpt: ... it appears that the client's address is unknown: If the attorney has no current address for the client, a reasonable effort must be made to locate the client (e.g., through the County Registrar of Voters). The attorney (or search firm) must provide a declaration detailing the efforts made. If the declaration establishes the client cannot be located despite diligent efforts, the client may be served in compliance with CCP § 1011(b), which author...
2018.4.5 Motion to Set Aside Default, Judgment 794
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.5
Excerpt: ...nent death in the November and December 2017 timeframe. See, Decl. MANH at paras. 9 & 15. He further states that due to his inadvertence and distraction, that both a default and default judgment were entered against Defendant. See, Decl. MANH at para. 15. The Court finds that this showing is credible. The Motion to Set Aside Default was filed on 03-20-18, which was within the six month time limit following entry of default judgment on 01-05-18. D...
2018.4.5 Application for OSC for Sale of Dwelling 563
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.5
Excerpt: ...atter is timely presented to the Court. (See 2/13/18 Decl. herein). However, a proposed Order to Show Cause form was not provided by the Applicant, as the Court requested in the minutes of 2/9/18. Under CCP §704.770, “(a) Upon the filing of the application by the judgment creditor, the court shall set a time and place for hearing and order the judgment debtor to show cause why an order for sale should not be made in accordance with the applica...
2018.4.5 Motion to Seal 772
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.5
Excerpt: ...er party or non-party would create a substantial risk of serious financial or other injury that cannot be avoided by less restrictive means.” Order 1.e. Materials designated this way may only be viewed by this Court, certified reporters, counsel, experts, consultants, and “any person” who is “familiar” with the materials if all parties agree. Order 8. Here, defendant asks this Court to uphold his decision to designate his own deposition...
2018.4.5 Motion to Bifurcate 118
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.5
Excerpt: ...that bifurcation will result in any convenience to the witnesses or judicial economy. It is not clear that a bifurcated punitive damages phase will be more expeditious. Additionally, the defendants have not established that bifurcation is needed to avoid undue prejudice. There is no evidence which supports a determination that the damages phase will present an overwhelmingly sympathetic reaction such as to make it difficult for the jury to decide...
2018.4.5 Application for Right to Attach Order, Writ of Attachment 713
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.4.5
Excerpt: ...ation. Based on the evidence presented, Plaintiff has not established its claim is for money based on a contract with Defendant where the total amount of the claim is fixed or readily ascertainable as required by Code of Civil Procedure section 483.010(a). The plaintiff has presented no evidence of a contract between the plaintiff and the defendant HB Crude. The plaintiff has not provided this court with any evidence which supports a finding that...
2018.3.22 Application for Right to Attach Order and Writ of Attachment 713
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.3.22
Excerpt: ...Civil Procedure §483.010(a). The plaintiff has established through the declaration of its vice president and custodian of records that as of June 2017, the principal amount owed to plaintiff is $41,954.66. Declaration of Parker. The Plaintiff met its initial burden of establishing a prima facie showing of prevailing on its claims against Defendants. In response, the defendants have presented no evidence which supports a finding that the plaintif...
2018.3.22 Demurrer 147
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.3.22
Excerpt: ...ion as one for personal injury and property damage. Her proposed pleading included a single cause of action for injuries arising out of an automobile accident occurring on 06/19/15. There were three named defendants (Arredondo as driver, Rogue as driver, and Jones as owner). Plaintiff's petition was granted (see ROA 3). On 08/17/17, plaintiff filed a First Amended Complaint. Although she was technically entitled to do so without prior approval (s...
2018.3.22 Motion for Terminating Sanctions 748
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.3.22
Excerpt: ...0(c), 2031.300(c), and 2025.450(h).) Sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery, but continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) Here, the evidence presented demon...
2018.3.22 Motion to Dismiss Action 202
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.3.22
Excerpt: ...owing in the Court records as having been actually filed, at the time of receipt. The Court did not review the submission and will return the submission to Ms. Galian unless the fact of service, and filing, are established by Ms. Galian, at the time of this hearing. Further, the Court would like to provide the cross-defendants adequate time to receive and respond to the documents, as well as the same for the Court. The hearing will likely be cont...
2018.3.22 Motion to Dismiss or Stay Action 547
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.3.22
Excerpt: ...��FTAs”). A party seeking to defeat a forum selection clause bears the “substantial burden” of demonstrating that enforcement of the clause would be unreasonable. (CQL Original Products, Inc. v. National Hockey League Players' Association (1995) 39 Cal.App.4th 1347, 1353-1354; Miller-Leigh LLC v. Henson(2007) 152 Cal.App.4th 1143, 1149.) Plaintiffs have not done so here. Nor is there any apparent basis for the claim that FTAs were not part ...
2018.3.22 Motion to Stay Enforcement of Judgment 434
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.3.22
Excerpt: ...y stayed during appeal. However, under C.C.P. § 917.1(a)(2), a cost award for expert witness fees claimed under C.C.P. § 998 is an exception to that rule. (See Quiles v. Parent (2017) 10 Cal.App.5th 130, 143 [expert witness fee award under § 998 is not, on its own, a money judgment under §917.1(a)(1): instead, it resides in a separate category that requires a bond for a stay on appeal under §917.1(a)(2).].) The Amended Judgment includes an a...
2018.3.22 Motion to Enjoin 127
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.3.22
Excerpt: ...f Proof As the moving party, Handler LLC has the burden of proof on two interrelated factors: (1) the likelihood that the moving party will prevail on the merits, and (2) whether the harm Handler LLC will likely suffer if injunctive relief is denied outweighs the harm Defendant BOFI Holding Inc. is likely to suffer if injunctive relief is granted. (O'Connell v. Superior Court (2006) 141 Cal. App. 4th 1452, 1481; Ketchens v. Reiner(1987) 194 Cal.A...
2018.3.15 Motion to Modify Subpoena 007
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.3.15
Excerpt: ...ts in force at the time of Lowery's death “on or about December 27, 2016” that named her as an insured. Plaintiff incorrectly argues that the requested material is protected from discovery byIns. Code §791.13. But the statute expressly permits disclosure in response to a facially valid subpoena. (Ins. Code §791.13(h).) Nor is the statute meant to preclude discovery in a civil action. (Irvington-Moore, Inc. v. Superior Court (1993) 14 Cal.Ap...
2018.3.15 Motion to Compel Further Responses 288
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.3.15
Excerpt: ...f has yet to provide responsive documents that are legible and complete documents. Normally, a separate statement would be required, but in this case the court will waive the requirement for the time being as the instances in which pages are illegible or incomplete may be too numerous and cumbersome for Defendant to set forth in detail at this time. Within 10 calendar days after service of notice of this ruling, Plaintiff is ordered to personally...
2018.3.15 Motion for Summary Judgment 662
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.3.15
Excerpt: ...e from Orange Coast Memorial Medical Center, Kaiser Permanente, Huntington Beach Hospital, and Sea Cliff Healthcare and opined that Defendant Amanda Donohue, D.O. complied with the applicable standard of care at all times and no act or omission on the part of Amanda Donohue, D.O. caused or contributed to Ms. Garcia's death. Brown Dec. ¶¶ 4-7 and 12. Dr. Brown further noted that although Dr. Donohue is associated with California Heart Associates...
2018.3.15 Demurrer 618
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.3.15
Excerpt: ...m another or to do an act with a positive, active, and absolute disregard of its consequences.'” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 412; Doe v. United States Youth Soccer Association, Inc. (2017) 8 Cal.App.5th 1118, 1140.) The effect of describing something as willful misconduct is that it is sufficiently opprobrious and culpable to have the legal consequences of an intentional tort. (Mahoney v. Corralej...
2018.3.8 Motion for Judgment on the Pleadings 579
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.3.8
Excerpt: ...t appear as if the parties did so here, as there isn't a declaration found with the moving papers. However, the recommendation is to proceed with the hearing because the trial is not too far away and it will be efficient to proceed at this time. Per the statute, “A determination by the court that the meet and confer process was insufficient is not grounds to grant or deny the motion for judgment on the pleadings.” (CCP §439(a)(4)). Also, the...
2018.3.8 Motion for Preliminary Injunction 865
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.3.8
Excerpt: ...te, on a mutually agreed date. The turn-over may be scheduled to take place in Department C-18 of this courtroom in the presence of courtroom staff. Second, the parties are ordered to meet and confer for the purpose of agreeing to a stipulated order concerning keeping defendant away from Raffi Yakubian and from any bank where trust assets are located. The Order should be specific as to locations of both Mr. Yakubian and trust assets. A stipulated...
2018.3.8 Motion to be Relieved as Counsel 713
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.3.8
Excerpt: ...ld be unable to fairly respond to important proceedings. CRPC 3-700(A)(2); Mossanen v. Monfared (2000) 77 Cal.App.4th 1402, 1409. There is a motion for provisional relief aimed at counsel's client, set for hearing on 03/22/18. There is also an upcoming MSC and trial around the corner. The client is an entity, and thus cannot participate without counsel. Motion to withdraw continued to 03/22/18 at 1:30pm. Counsel is ordered to immediately serve up...
2018.3.8 Motion to Vacate Defaults 833
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.3.8
Excerpt: ... supporting evidence as to its execution. Plaintiff also needs to show that all conditions precedent to entry of the stipulated judgment have been met. Second, the Motion states that the defendants defaulted under the terms of that settlement agreement. (Motion p. 3.) But in a declaration filed on 4/21/17 (ROA 35), Plaintiff's counsel stated that the defendants had made some of the promised payments. It thus appears that some credit would be due ...
2018.3.1 Demurrer 876
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.3.1
Excerpt: ... claim for misrepresentation, plaintiff must allege with particularity:  defendant represented to plaintiff that an important fact was true;  that representation was false;  defendant knew that the representation was false when made;  defendant intended plaintiff to rely on the representation;  plaintiff reasonably relied on the representation;  plaintiff was harmed; and  plaintiff's reliance was a substantial factor in causi...
2018.3.1 Demurrer 403
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.3.1
Excerpt: ...uty in order to have an actionable “wrong” under B & P C§17200. This Court further observed that the allegations were enough to permit the inference that Chicago did something wrong and caused harm as a result thereof. On 11/13/17, Chicago filed a motion for judgment on the pleadings directed at the narrow question of whether plaintiff had stated a legal basis for relief. Although Chicago's approach to split the attack was gamey, this Court ...
2018.3.1 Motion for Leave to File Complaint 482
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.3.1
Excerpt: ...r third person not yet a party to the action only if the cause of action asserted: (1) arises out of the same transaction, occurrence, or series of transactions or occurrences set forth in the complaint, or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the COA brought against him. (Id. At §6:525, citing CCP § 428.10(b).) Here, the proposed XC seeks to name a third party that is allegedly responsi...
2018.3.1 Motion for Summary Judgment 166
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.3.1
Excerpt: ...t adjudication turns on factual questions, the trial court assesses the evidence in light of the parties' respective burdens. The moving party's affidavits are strictly construed while those of the opposing party are liberally construed. Once the defendant's initial burden is met, the burden shifts to the plaintiff to show by substantial evidence that a triable issue of material fact exists as to the claim or defense. CCP §437c; Aguilar v. Atlan...
2018.2.22 Request to Conform Operative Pleading 875
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.2.22
Excerpt: ...usiness practices was now one for declaratory relief based on the lots yet to have flooring ordered and installed. At the very least there are 352 “remaining lots” which plaintiff claims entitlement to commissions (even though defendant has not necessarily even determined any profit margin). ...
2018.2.22 Application for Service of Summons 166
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.2.22
Excerpt: ....App.2d 798, 805); Batte v. Bandy (1958) 165 Cal.App.2d 527, 533 (“Affidavits devoid of averments of facts showing that due diligence was exercised to make service have consistently been held to be insufficient…”). Plaintiff's declaration, paragraph 5, does not provide enough information about what was found at the registered address for the agent for service of process for Creek Systems Inc. (Kevin M. Daly) at 8105 Irvine Center Drive, Sui...
2018.2.22 Motion for Joinder 680
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.2.22
Excerpt: ...Agreement is illusory. However, the Court has located no authority that addresses facts the same as or similar to the facts presented here. Given the public policy that arbitration agreements should be enforced wherever possible, the Court concludes that a valid arbitration agreement has been shown here. There is no showing that the 2016 Agreement is void due to fraud in the inception or is procedurally unconscionable. Plaintiff has forthrightly ...
2018.2.22 Motion to Compel Arbitration 651
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.2.22
Excerpt: ...court GRANTS the Petition for the reasons set forth below. This litigation is stayed pending resolution of the arbitration. A. Basic Procedure In Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 412-414, the California Supreme Court explained the procedure a trial court must follow when a party files a petition to compel arbitration. The only question is whether the trial court should specifically enforce the arbitrati...
2018.2.15 Demurrers 753
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.2.15
Excerpt: ...evelopment. The project included seventy-eight (78) residential units and six (2) two-story structures. Although there was already a Condominium Act in California, the governing decision-makers of Manor elected to operate the development as a non-profit stock cooperative. While similar to a condominium, the biggest difference is that in a co-op the resident members do not own the unit they occupy; instead, they enjoy an exclusive leasehold of the...
2018.2.15 Motion for Summary Judgment 067
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.2.15
Excerpt: ...evidence is put forward, the burden shifting analysis in circumstantial evidence cases is not utilized. Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138. With direct evidence, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial. Cordova v. State Farm Ins. Companies (9th Cir. 1997) 124 F.3d 1145, 1150; Godwin v. Hunt Wesson, Inc. (9th Cir. 1998) 150 F.3d 1217, 1221 (“This comme...
2018.2.15 Motion to Deem RFA's Admitted 429
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.2.15
Excerpt: ...sts for Admission, Set One (the “RFAs”) were propounded to Plaintiff on 10/19/17, and that despite an extension to 12/7/17, no responses were ever provided. (Kruppe Decl. at ¶¶ 2-4 and Ex. A.) The arguments presented in the Opposition do not warrant a continuance: unless responses in substantial compliance with C.C.P. § 2033.220 are provided before the hearing, the matters specified in those RFAs shall be deemed admitted. Sanctions are imp...
2018.2.15 Motions for Reconsideration, New Trial 381
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.2.15
Excerpt: ...e party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or la...
2018.2.8 Motion for Appointment of Receiver 377
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.2.8
Excerpt: ...v. Williams (1994) 23 Cal.App.4th 238, 246 Plaintiff has not shown the harsh, time-consuming, expensive and potentially unjust remedy of a receivership is “absolutely essential” in this case. See, City & County of San Francisco v. Daley (1993) 16 CA4th 734, 745 Plaintiff's evidence supporting “insolvency” under CCP §654(b)(6) is insufficient to show that a receivership is warranted. At most, the evidence is equivocal. If believed, it sho...
2018.2.8 Motion for Summary Judgment 083
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.2.8
Excerpt: ...dmission, Set One, as Nissa n had failed to respond thereto. Motion 1 is GRANTED IN PART. Plaintiff asserts that Form Interrogatories (Set One), Special Interrogatorie s (Set One), and Requests for Production (Set One), were propounded to Plaintif f on 7/31/17. (Babbitt Decl., ¶ 3.) Nissan concedes that it failed to timel y respond thereto. (Leonard Decl. ¶ 2.) As responses were not timely provided , all objections were waived. (SeeC.C.P. §§2...
2018.2.8 Motion for Summary Judgment or Adjudication 350
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.2.8
Excerpt: ...djudication as to all four issues and also DENIES the motion for summary judgment. A. 1st COA: Legal Malpractice DENIED as to Issues 1 and 2. Issue 1. Reid's cause of action for Legal Malpractice against Defendants is without merit as a matter of law because Reid is unable to establish any breach by Defendants of their duty of care. Issue 2. Reid's cause of action for Legal Malpractice against Defendants is without merit as a matter of law becaus...
2018.2.8 Motion to Compel Responses 566
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.2.8
Excerpt: ...dmission, Set One, as Nissa n had failed to respond thereto. Motion 1 is GRANTED IN PART. Plaintiff asserts that Form Interrogatories (Set One), Special Interrogatorie s (Set One), and Requests for Production (Set One), were propounded to Plaintif f on 7/31/17. (Babbitt Decl., ¶ 3.) Nissan concedes that it failed to timel y respond thereto. (Leonard Decl. ¶ 2.) As responses were not timely provided , all objections were waived. (SeeC.C.P. §§2...
2018.2.8 Motion to Remove Director 879
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.2.8
Excerpt: ...ssuance or nonissuance of the injunction. “The trial court's determinatio n must be guided by a mix of the potential-merit and interim-harm factors; th e greater the plaintiff's showing on one, the less must be shown on the other t o support an injunction. Of course, the scope of available preliminary relief i s necessarily limited by the scope of the relief likely to be obtained at trial on th e merits. A trial court may not grant a preliminar...
2018.2.8 Motion to Set Aside 299
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.2.8
Excerpt: ... demonstrate inadvertence , mistake, surprise or excusable neglect. Here, defendant explains that he is self-represented, and unfamiliar with ho w to respond to a lawsuit. He explains that he did come to court on two prio r hearing dates, and appears to be participating as best he can. He was unawar e of the risk of default, despite already making what amounts to a genera appearance in the action. See City of Riverside v. Horspool (2014) 22 3 Cal...
2018.2.8 OSC Re Motion to Strike 202
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.2.8
Excerpt: ... because Outsourcing is without counsel, and a corporate entity is not able t o represent itself in general litigation. (See Gamet v. Blanchard (2001) 9 1 Cal.App.4th 1276, 1284 n.5; CLD C o n s t . , I n c . v . C i t y o f S a n R a m on (2004) 12 0 Cal.App.4th 1141, 1145-1150.) The cross-defendants, Sanders Engineering Co. and Craig Jackson, hav e objected to this, via their demurrer to the operative pleading. (See Docke t #153). Outsourcing w...
2018.2.8 Motion for Good Faith Settlement Determination 453
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.2.8
Excerpt: ...ring is continued for the limited purpose of serving any omitted parties , their opposition will be due to the Court, at least 9 court days before the nex t hearing. This is not an authorization for the parties who were served with th e moving papers, to submit their oppositions at this time. Also, the MP's Notice of motion [see ROA 296] does not comply with CR C 3.1382 by identifying each party, each pleading or portion of pleading affecte d by ...
2018.2.1 Motion for Leave to File Complaint 203
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.2.1
Excerpt: ...f action for Malicious Prosecution and new allegations regarding the express written release currently pled in the Cross Complaint. The court finds no prejudice to Cross Defendants resulting from Cross Complainant's delay from July to January in seeking this leave. If delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. Indeed, it is an abuse of discretion to deny leave in...
2018.2.1 Demurrer 572
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.2.1
Excerpt: ...C does allege facts to support its claim as to her “creditor” status. (FAC ¶¶ 9 & 10.) Nor is the TILA claim clearly time-barred. Buyers argue that even if she is a creditor, there is a 3-year limitation on the right to rescind. But a demurrer on statute of limitations grounds will not lie where the action is not necessarily barred – the defect must appear clearly and affirmatively upon the face of the complaint. (Lee v. Hanley(2015) 61 C...
2018.2.1 Motion for Attorney Fees 718
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.2.1
Excerpt: ...the prevailing party, and award costs of suit and statutory attorney fees, at the conclusion of a litigation, after all the claims are resolved. [See CCP §1033.5(a)(10), (c)(5)); Cal.R.Ct. 3.1702(a),(b), 8.104(a); Civ. Trials & Evid. §§ 17:151-52, 17:166 (Rutter Group 2017); P R Burke Corp. v. Victor Valley Wastewater Reclamation Authority (2002) 98 Cal.App.4th 1047, 1052.] Here, the case is not over, and Plaintiff still has one undisposed-of ...
2018.2.1 Motion to Withdraw as Attorney 937
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.2.1
Excerpt: ...arvig requests from this Court an order relieving it from further participation in this case. An attorney may withdraw as counsel of record if the client breaches the agreement to pay fees, insists on pursuing invalid claims or an illegal course of conduct, or when other conduct by the client renders it unreasonably difficult for the attorney to do his job, including when there is a breakdown in the attorney-client relationship. California Rules ...
2018.2.1 Motion to Consolidate 622
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.2.1
Excerpt: ...895671) filed 1/05/17 5. Palatinus v. Casa Apts. (2017-932144) filed 7/18/17 CCP 1048 (a) provides that: “When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” The court DENI...
2018.2.1 Motion to Strike 671
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.2.1
Excerpt: ...ode of Regulations for the subject premises. Evidence Code § 669 codifies the “negligence per se” doctrine as a presumption affecting the burden of proof: i.e., defendant's failure to exercise due care is presumed if: • Defendant violated a statute, ordinance or safety regulation of a public entity; • The violation legally caused injury or death; • The occurrence resulting in the injury or death was of a nature that the statute, ordina...
2018.2.1 Motion to Strike 988
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.2.1
Excerpt: ...ng averment for punitive damages. Initially, there continues to be a concern over standing. Although defendants have not raised the issue, this lingers on from the prior unsuccessful application for appointment of a guardian ad litem. As indicated in the operative pleading and opposition papers, it appears this litigation is being handled by plaintiff's daughter, Dellia Montgomery. The “authorization” presented by her to this Court specifies ...
2018.2.1 Request for Admissions 743
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.2.1
Excerpt: ...oving papers, was a letter from the Defendant's counsel, dated 10/5/17, expressing that a response to this motion was unlikely. (See ROA 28, Ex. C.) Because of the harmful effect that admissions can have on the case, the RP can serve verified, substantially-compliant responses to RFAs, before the hearing, and if so, then the Court must deny the motion to deem them admitted. [See CCP §2033.280(c); St. Mary v. Superior Court (2014) 223 Cal.App.4th...
2018.1.25 Motion to Vacate, Set Aside Request for Entry of Default 238
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.1.25
Excerpt: ...ause it might be required to satisfy the judgment against its insured. The moving party has attached a copy of the proposed answer to th e motion. Colfer Dec. ¶ 2, Exhibit A. The default was enters on July 5, 2017 and default judgment was entered o n July 14, 2017. Rodriguez Dec. ¶¶ 16. This motion was filed on October 10 , 2017. Therefore, it is timely under CCP § 473(b). The moving party has established its insured's default and de-fault ju...
2018.1.25 Demurrer 457
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.1.25
Excerpt: ...aintiff's counsel are ordered in the future to dul y participate in the required meet and confer process, pursuant to CC P §430.41(a). Demurrer to 1st C/A for Breach of Written Contract The First Amended Complaint alleges fairly clearly, there was an ora agreement with specific terms (FAC ¶ 11) but it is less clear about the writte n contract. It alleges, the oral agreement “was later memorialized in variou s writings, together constituting a...

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