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2020.03.09 Motion to Compel Deposition, Further Answers 181
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.03.09
Excerpt: ...urther Answers to Request for Production of Documents, Set 2. Moving Party Plaintiff Tobey Arietta. Responding Party Defendant Jeffrey Fairbairn. 5) To Compel Answers to Deposition Questions. Moving Party Plaintiff Tobey Arietta. Responding Party Defendant Jeffrey Fairbairn. 6) To Compel Further Answers to Form Interrogatories. Moving Party Defendant Jeffrey Fairbairn. Responding Party Plaintiff Tobey Arietta. Ruling Motion 1: Plaintiff's motion ...
2020.03.09 Motion for Summary Judgment, Adjudication 589
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.03.09
Excerpt: ...mes both plaintiffs remain in the case. First Cause of Action (Negligence). The motion for summary adjudication is denied as to the first cause of action for negligence. 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.) G...
2020.03.09 Motion for Summary Judgment 881
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.03.09
Excerpt: ...the remainder of Plaintiffs' objections are overruled. The Court declines ruling on Defendants' objections because they are not material to the outcome of the motion. (See Code Civ. Proc. §437c(q).) 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.) “A prima...
2020.02.10 Motion for Terminating Sanctions, for Leave to Amend 589
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.02.10
Excerpt: ...locate and establish the chain of custody shall be reviewed and may be reallocated upon the filing of a motion seeking such relief. “ ‘Spoliation of evidence means the destruction or significant alteration of evidence or the failure to preserve evidence for another's use in pending or future litigation. [Citations.] Such conduct is condemned because it 'can destroy fairness and justice, for it increases the risk of an erroneous decision on th...
2020.02.03 Petition for Writ of Mandate 720
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.02.03
Excerpt: ...s the California Horse Racing Board (“CHRB”). While the trial court reviews administrative actions to determine whether an agency's decision “was arbitrary, capricious, or entirely lacking in evidentiary support . . . [,] [t]he trial court reviews legal questions, including questions of statutory construction, de novo.” (City of Scotts Valley v. County of Santa Cruz (2011) 200 Cal.App.4th 97, 23-24.) In assessing the weight due to an agen...
2020.02.03 Motion to Expunge Lis Pendens 720
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.02.03
Excerpt: ...rement 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 action shall be void and invalid as to any adverse party or owner of record unless the requirements of Section 405.22 are met for that party or owner and a proof of service in the form and content s...
2020.02.03 Demurrer 769
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.02.03
Excerpt: ...s against St. Joseph Heritage Health and its employees. (RJN 1). “'Release, indemnity and similar exculpatory provisions are binding on the signatories and enforceable so long as they are ... 'clear, explicit and comprehensible in each [of their] essential details. Such an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement.'” Skrbina v. Fleming Companies (1996) 45 Cal....
2020.01.27 Motion to Amend Judgment 533
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.01.27
Excerpt: ...ld three years ago that Brian Schear was not the alter ego of Schear, Inc., the subsequent events establish that the Court should grant this motion. Alter Ego: Code of Civil Procedure “Section 187 grants every court the power and authority to carry its jurisdiction into effect. [Citation.] This includes the authority to amend a judgment to add an alter ego of an original judgment debtor, and thereby make the additional judgment debtor liable on...
2020.01.13 Motion to Quash Discovery Subpoena 813
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.01.13
Excerpt: ...arch 21, 2015 through the date of production. Plaintiff/Cross-Defendant Kevin Garcia (“Garcia”) subpoena seeks documents protected by Defendant/Cross-Complainant Martin Arteaga's (“Arteaga”) right to privacy. (Fortunato v. Superior Ct. (2003) 114 Cal.App.4th 475, 480-81 [financial records are protected by individual's right to privacy]; Valley Bank of Nev. v. Superior Ct. (1975) 15 Cal.3d 652, 656 [individual has right to privacy in his o...
2020.01.13 Motion for Summary Judgment, Adjudication 037
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.01.13
Excerpt: ...nd/or Summary Adjudication is DENIED. Motion No. 1: Defendant C.G. Landscape, Inc.: An answer to the complaint is required to make “A statement of any new matter constituting a defense.” (CCP 431.30 (b) (2)). “'[A]ny issue on which defendant bears the burden of proof at trial is ‘new matter' and must be specially pleaded in the answer.'” Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 756. On 4/30/18, Defend...
2020.01.13 Demurrer, Motion to Strike, to Compel Further Responses 947
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.01.13
Excerpt: ... Third Cause of Action (Fraud). The demurrer to the third cause of action for fraud is sustained with leave to amend. Active concealment or suppression of facts is the equivalent of actual fraud. (Civ. Code, § 1572(3).) The elements of a cause of action for fraudulent concealment are: (i) concealment or suppression of a material fact; (ii) by a defendant with a duty to disclose the fact to the plaintiff; (iii) defendant's intent to defraud plain...
2020.01.06 Demurrer 528
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.01.06
Excerpt: ...ney Parks, Experiences and Products, Inc., are overruled. Moving Defendants demur to the entire complaint based on the contention “there are no factual allegations” against The Walt Disney Company and Disney Parks, Experiences and Products, Inc. The Complaint identifies Defendant The Walt Disney Company as “Doe 1.” The Complaint alleges that all Doe defendants participated in all the events alleged in the Complaint. (Compl. ¶ 38.) Defend...
2020.01.06 Motion to Compel Arbitration 312
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.01.06
Excerpt: ... two agreements. The first was the twelve page Employment Agreement (Exhibit A). The second was the three page Mutual Agreement to Arbitrate Claims (Exhibit B). These do Civ. Code, § 1642 provides that “Several contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together.” When two agreements are entered at roughly the same time, they treated as one transaction...
2020.01.06 Motion to Set Aside Default Judgment 489
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2020.01.06
Excerpt: ...ntry of the judgment. Cal. Civ. Proc. Code § 473(b). This limit is jurisdictional. (Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 928 (“This six-month time limitation is jurisdictional; the court has no power to grant relief under section 473 once the time has lapsed.”).) Here, Defendant did not file the motion to vacate within 6 months of the March 27, 2019 entry of default. Instead, Defendant filed the motion on Oc...
2019.9.23 Motion to Vacate Default, Judgment 820
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.9.23
Excerpt: ...easonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see also Fasuyi, 167 Cal.App.4th at 694.) Finally, any application for discretionary relied under section 473(b) must be “accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted.” (Code Civ. Proc., § 473, subd. (b).) H...
2019.9.23 Motion to Strike 861
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.9.23
Excerpt: ... claim. Plaintiff's request for judicial notice is granted. Civil Code section 3294 provides that punitive damages may be awarded in an action for breach of an obligation not arising from contract, if the plaintiff proves by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. “Malice” means conduct that is intended to cause injury or despicable conduct that is carried on with a willful and conscio...
2019.9.23 Motion to Strike 652
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.9.23
Excerpt: ...e, oppression, or fraud. (Civ. Code, § 3294(a).) In addition, to plead a claim to recover punitive damages against an employer based on the acts of an employee, that plaintiff must plead facts showing the employer “had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was pers...
2019.9.23 Motion for Attorney Fees 906
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.9.23
Excerpt: ...not contest the reasonableness of defense counsel's hourly rate and the court finds this rate to be reasonable. Under section 425.16, subdivision (c), “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs.” “ ‘A statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise.' [Citation.]...
2019.9.23 Demurrer 618
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.9.23
Excerpt: ...nce under Welf. & Inst. Code, § 15657.2: Failure to assist in personal hygiene. Seventh Cause of Action: Professional Negligence under Welf. & Inst. Code, § 15657.2: Failure to assist in personal hygiene. Tenth Cause of Action: Professional Negligence under Welf. & Inst. Code, § 15657.2: Disobeying Doctors Orders. Twelfth Cause of Action: Professional Negligence for Failure to refer Specialist for glaucoma, cataracts, arthritis. Thirteenth Cau...
2019.9.9 Motion for Summary Judgment, Adjudication 231
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.9.9
Excerpt: ... records exception to the hearsay rule. A plaintiff moving for summary judgment or summary adjudication bears the burden of persuasion that each element of the cause of action at issue has been proved, and as a result, there is no defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) If the plaintiff fails to meet its burden to make an initial showing, it is unnecessary for the court to examine the defen...
2019.9.9 Demurrer, Motion to Strike 038
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.9.9
Excerpt: ...these causes of action with particularity. Significantly, Plaintiff did not allege the dates that the City allegedly retaliated against him. “Because under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Thus, ‘to state a cause of action against a public entity, every fact material to the existence of its statutory liabi...
2019.9.9 Demurrer 142
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.9.9
Excerpt: ...t allege that: (i) defendants had a legal duty to use due care; (ii) 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.) A mortgage broker acts as the borrower's agent and owes a duty to the principal to exercise reasonable skill and care in the exercise of agency duties for the principal's benefit and bests interests. (Thomson v. Cany...
2019.9.3 Motion for Summary Judgment, Adjudication 998
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.9.3
Excerpt: ... complete defense to the cause of action. (Code Civ. Proc., § 437c(p)(2).) The scope of this burden is determined by the allegations of the plaintiff's complaint. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381–82 [pleadings serve as the outer measure of materiality in a summary judgment motion]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18–19 [respondent only required to defeat allegatio...
2019.8.5 Motion to Strike 749
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.8.5
Excerpt: ...lose a conscious disregard of the probable dangerous consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 892; see Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 86 & 90 (Claim for punitive sufficiently pled by alleging individual was intoxicated, zigzagging in and out of traffic at a speed of more than 65 miles per hour in a 35 mile per hour zone in an area densely populated with pedestrians.); Peterson v. Superior Court (1982) 31...
2019.8.5 Motion to Set Vacate Default, Judgment 056
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.8.5
Excerpt: ...atement five (5) court days prior to the hearing. Public Policy: “The law favors judgments based on the merits, not procedural missteps. Our Supreme Court has repeatedly reminded us that in this area doubts must be resolved in favor of relief . . . .” Lasalle v. Vogel(2019) 36 Cal.App.5th 127, 134. (Emphasis original). C.C.P. § 473 (b) provides that “The court may, upon any terms as may be just, relieve a party or his or her legal represen...

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