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2020.09.14 Applications for Right to Attach Orders 271
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.09.14
Excerpt: ... a right to attach order if it finds all of the following: (1) the claim upon which the attachment is based is one upon which an attachment may be issued; (2) the plaintiff has established the probable validity of the claim upon which the attachment is based; (3) the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; and (4) the amount to be secured by the attachment is greater than zer...
2020.09.09 Demurrers 410
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.09.09
Excerpt: ...g Party: Plaintiffs Ralph and Maria Clure 4. Demurrer to Amended Complaint Moving Party: Defendant County of Orange Responding Party: Plaintiffs Ralph and Maria Clure Ruling Demurrer 1) The Demurrer of Defendants GD Friend Inc. dba Everlast Home Energy Solutions (GDFreind), Gregory Friend (Mr. Friend), American Contractors Indemnity Co (ACIC) and Suretec Indemnity Co. (Suretec) to the First Amended Complaint is OVERRULED. Statute of Limitations: ...
2020.09.09 Motion for Leave to File Amended Complaint 901
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.09.09
Excerpt: ... The Motion to Strike currently set for 11/9/20 shall be the response of Defendant Rainbow Rising, Inc. Testing the Pleading: “[E]ven if the proposed legal theory is a novel one, ‘the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.'” Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 10...
2020.08.31 Motion for Summary Judgment 308
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.08.31
Excerpt: ...The evidentiary objections filed by Defendant LAZ Karp Associates, LLC (LAZ) are overruled because they do not comply with CRC Rule 3.1354. A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Once the moving party meets that burden, the burden shifts to the part...
2020.08.31 Demurrer 365
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.08.31
Excerpt: ...uld Plaintiff wish to amend the complaint to address the issues herein, Plaintiff shall file and serve the amended complaint within 15 days of service of the notice of ruling. In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the p...
2020.08.24 Demurrer 760
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.08.24
Excerpt: ...) is sustained with leave to amend. Should Plaintiff wish to amend the complaint to address the issues herein, Plaintiff shall file and serve the amended complaint within 15 days of service of the notice of ruling. In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the tr...
2020.08.24 Anti-SLAPP Motion to Strike 365
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.08.24
Excerpt: ...ional Trust Co. (2011) 196 Cal.App.4th 1366, 1375 (“While courts take judicial notice of public records, they do not take notice of the truth of matters stated therein.”). Code of Civil Procedure section 425.16 provides that “[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection...
2020.08.17 Motion for Summary Judgment, Adjudication 688
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.08.17
Excerpt: ...tiff a legal duty, (2) the defendant breached the duty, and (3) the breach was a proximate or legal cause of the plaintiff's injuries. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477.) Here, Plaintiffs allege that Defendant JALD Enterprises, Inc. dba Accurate Termite and Pest Control (Accurate) had a duty to perform its inspection with a degree of care beyond ordinary care and to use the skill, prudence and diligence commonly exercised by th...
2020.08.10 Motion to Compel Arbitration 977
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.08.10
Excerpt: ...e Court finds that the arbitration agreement was procedurally and substantively unconscionable. In addition, the Court finds that Plaintiff did not waive the right to compel arbitration. Commercial Context: Plaintiff is incorrect in taking the position that this commercial transaction could not be unconscionable. “The parties dispute the extent to which the doctrine of unconscionability applies to commercial contracts. Plaintiffs claim Californ...
2020.08.10 Motion for Summary Judgment, Adjudication 520
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.08.10
Excerpt: ....App.4th 994, 998.) “[L]andowners are required ‘to maintain land in their possession and control in a reasonably safe condition' [citation], and to use due care to eliminate dangerous conditions on their property [citations].” (Taylor v. Trimble (2017) 13 Cal.App.5th 934, 943- 944; accord, Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205 [an owner owes patrons “a duty to exercise reasonable care in keeping the premises reasonably safe�...
2020.08.10 Demurrer 123
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.08.10
Excerpt: ...d, Hecht & Soldberg (1995) 30 Cal.App.4th 1373, 1386-1387.) Under Section 340.6(a), “[a]n action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of t...
2020.08.03 Demurrer, Motion to Seal 075
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.08.03
Excerpt: ...lements of a cause of action for breach of contract are: (i) existence of the contract; (ii) Plaintiff's performance or excuse for nonperformance; (iii) Defendant's breach; and (iv) damage to plaintiff resulting therefrom. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811.) The FAC alleges sufficient facts to support each element of the claim, including the legal effect of the alleged contract. (McKell v. Washington Mut., Inc. (2006) 142 C...
2020.08.03 Demurrer 166
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.08.03
Excerpt: ...ts appearing on the face of the pleading or from other matters properly subject to judicial notice. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Under Section 430.10(e) the test is whether the complaint states any valid claim entitling plaintiff to relief, even if plaintiff's cause of action is improperly titled, or an improper remedy is stated. (See Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38, and Town Council, In...
2020.08.03 Motion for Attorney's Fees 720
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.08.03
Excerpt: ...ould be unjust. Service Requirements: “[N]oncompliance with the mailing requirement is a . . . nonstatutory ground for expungement. Carr v. Rosien (2015) 238 Cal.App.4th 845, 857. The service requirement concerned the adverse party in this litigation and the owner of record the property. This requirement did not apply to Stern Investments, because it did not own the properties when the two Lis Pendens were recorded. “Any notice of pendency of...
2020.08.03 Demurrer, Motion to Strike 815
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.08.03
Excerpt: ...use of Action: Dependent Adult Abuse and/or Neglect (Pursuant to Welfare and Institutions Code section 15600, et. seq.) Defendants argue that the FAC does not allege facts showing more than negligence. However, the FAC alleges sufficient facts that a jury could find that Defendants acted recklessly or oppressively. Specifically, Plaintiffs allege that Defendants failed to protect decedent from a known and anticipated suicidal ideation, failed to ...
2020.08.03 Motion for Anti-SLAPP 290
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.08.03
Excerpt: ... . .” (Page 11, lines 10- 11). The Court DENIES the remainder of the motion. The Court GRANTS Plaintiff's and Defendant's Request for Judicial Notice. Plaintiff's Request for Attorney Fees is DENIED, because Defendants' Motion was not “frivolous or is solely intended to cause unnecessary delay.” [Code Civ. Proc., § 425.16 (c) (1)]. Defendants may move to recover attorney fees and cost. Anti-SLAPP Test: “The trial court undertakes a two-s...
2020.08.03 Motion for SLAPP 654
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.08.03
Excerpt: ...al proceedings are protected by the anti-SLAPP statute. (CCP §§425.16(e)(1), 425.16(e)(4); Navellier v. Sletten (2002) 29 Cal. 4th 82, 88-90; Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 670. “The prosecution of an unlawful detainer action indisputably is protected activity within the meaning of section 425.16.” Feldman at 1479.) Thus, a malicious prosecution action is subject to a section 425...
2020.07.27 Motion for Summary Judgment, Adjudication 861
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.07.27
Excerpt: ...s, Inc. (2004) 32 Cal.4th 1138, 1142.) Duty is an essential element of a negligence claim. “If there is no duty, there can be no liability, no matter how easily one may have been able to prevent injury to another.” (Margaret W. v. Kelley R. (2006) 139 Cal.App.4th 141, 150.) Issue No. 1 An affirmative duty to act to protect others from the conduct of third parties may arise where there is a special relationship between the parties. (Delgado v....
2020.07.27 Demurrer, Motion to Strike 082
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.07.27
Excerpt: ...pleading. (Fenton v. Groveland Community Services Dept. (1982) 135 Cal.App.3d 797, 809 (disapproved on other grounds in Katzberg v. Regents of the University of California (2002) 29 Cal.4 th 300).) A demurrer for uncertainty will only be sustained where the complaint is so poorly pled that a defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly's of ...
2020.07.27 Anti-SLAPP Motions 730
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.07.27
Excerpt: ...dicial Notice is GRANTED. Defendants' Objections to Evidence are OVERRULED. Pursuant to Code Civ. Proc., § 425.16 (c) (1), as prevailing parties Defendants are entitled to recover attorney fees and costs. Defendants may file separate motions “to produce records sufficient to provide ‘a proper basis for determining how much time was spent on particular claims.'” Christian Research Inst. v. Alnor (2008) 165 Cal. App. 4th 1315, 1320. Anti-SLA...
2020.07.13 Motion for Summary Judgment, Adjudication 816
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.07.13
Excerpt: ...mary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Ibid.) “A prima facie showing is one that is sufficient ...
2020.07.13 Motion for Summary Judgment, Adjudication 021
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.07.13
Excerpt: ...antic Richfield Co. (2001) 25 Cal. 4th 826, 850.) Once the plaintiff has met its initial burden, the burden shifts to the defendant to show a triable issue as to one or more material facts or a defense thereto. The defendant may not rely on the mere allegations or denials of its pleadings, but must set forth the specific facts showing a triable issue exists. (Id. at 849.) First Cause of Action for Breach of Contract The elements of a cause of act...
2020.03.16 Demurrer 727
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.03.16
Excerpt: ... To state a claim for negligence, plaintiff must allege that: (i) defendants had a legal duty to use due care; (i) a breach of such legal duty; and (iii) the breach as the proximate or legal cause of the resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) Here, the FAC fails to identify any duty of care or breach. Instead, the First Cause of Action attempts to characterize the various alleged contractual and intentional to...
2020.03.16 Demurrer 256
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.03.16
Excerpt: ...e elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) A Marvin claim is a claim to enforce a contract that is either express (that is, written or oral) or implied in fact (that is, “manifested by [the parties'] ...
2020.03.09 Motion to Tax Costs 949
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.03.09
Excerpt: ...e or necessary. (Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4 th 11, 29; Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 773-74.) The party challenging costs does not meet this burden by arguing that the costs were not necessary or reasonable, but must present evidence and prove that the costs are not recoverable. (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4 th 1550, 1557; see also Wagner F...

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