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2019.7.29 Demurrer 292
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.7.29
Excerpt: ...ach of the four patients that received treatment. “While the ‘allegations [of a complaint] must be accepted as true for purposes of demurrer,' the ‘facts appearing in exhibits attached to the complaint will also be accepted as true and, if contrary to the allegations in the pleading, will be given precedence.'” Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 767. The forms included a “Benefits and Eligibility Disclaimer,�...
2019.6.24 Demurrer, Motion to Strike 861
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.6.24
Excerpt: ...rtainty is overruled. Plaintiff shall have 15 days leave to amend. Plaintiff's requests for judicial notice are granted. First Cause of Action for Negligent Supervision To establish a claim of negligent supervision, a plaintiff must prove the traditional elements of actionable negligence. (Thompson v. Sacramento City Unified School Dist., 107 Cal.App.4th 1352.) To prevail on an action in negligence, the plaintiff must show that the defendant owed...
2019.6.24 Demurrer 469
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.6.24
Excerpt: ..., § 831.4, the County is immune from liability, injuries caused by a physical defect of a recreational trail. Montenegro v. City of Bradbury (2013) 215 Cal.App.4th 924, 929. Trail Immunity: Gov. Code, § 831.4 provides that “A public entity, public employee, or a grantor of a public easement to a public entity for any of the following purposes, is not liable for an injury caused by a condition of: (a) Any unpaved road which provides access to ...
2019.6.24 Demurrer 544
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.6.24
Excerpt: ...viously granted by this court 03/20/2019. Defendants do not object to the FAC on that ground and instead attack the three new causes of action pursuant to Code of Civil Procedure Section 430.10(e). The FAC pleads causes of action for cancellation of instruments, wrongful foreclosure, and slander of title. All three causes of action are based on the allegation that the 2007 Deed of Trust, the 2015 Assignment of Mortgage, and the subsequently recor...
2019.6.24 Demurrer 589
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.6.24
Excerpt: ...gligence cause of action [are] duty, breach of duty, proximate cause and damages. [Citations.]” (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614; Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526.) “A plaintiff ‘must allege a causal connection between the negligence ... and the injury he suffered …. [W]here the pleaded facts of negligence and injury do not naturally give rise to an inference of causation the plaintiff must plead specif...
2019.6.24 Demurrer 783
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.6.24
Excerpt: ...Cause of Action (Battery) The elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant's conduct; and (4) a reasonable person in the plaintiff's position would have been offended by the touching.” (Carlsen v. Koivumaki (...
2019.6.24 Demurrer 086
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.6.24
Excerpt: ...ed by the court's order. (See Harris v. Wachovia Mortg. (2010) 185 Cal.App.4th 1018, 1023.) This Court previously sustained without leave to amend Plaintiff's cause of action for breach of contract, and Plaintiff did not move for leave to add any additional cause of action prior to filing the First Amended Complaint (“FAC”). (See Code Civ. Proc., § 472.) Thus, the first cause of action is hereby stricken on the court's order. The general and...
2019.6.17 Motion to Tax Costs 364
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.6.17
Excerpt: ...any statute prohibiting the filing of an amended costs memorandum, so long as the memorandum is timely under CRC 3.1700. Insofar as the Reply in support of this Motion addresses costs not listed in the costs memorandum filed on March 29, 2019, such arguments are disregarded, as new arguments or evidence are not permitted on reply, particularly where Plaintiff has not had an opportunity to respond. Filing and Motion Fees Defendant argues that the ...
2019.6.17 Motion for Attorney Fees 731
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.6.17
Excerpt: ... appropriate hours expended and hourly rates. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) Plaintiffs are entitled to recover fees as the prevailing buyers under Civil Code Section 1794(d). The lodestar method for calculating fees applies to statutory attorney's fee awards. (K.I. v. Wagner (2014) 225 Cal.App.4th 1412, 1425.) The trial court has broad authority to determine the reasonable amount fees to be awarded under the l...
2019.6.17 Motion to Set Aside Default, Judgment 955
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.6.17
Excerpt: ...under submission. Void Judgment: The Cross-Complaint did not allege personal injury or wrongful death. The pleading alleged no specific sum of damages. Since the Cross-Complaint failed to allege any amount of the Default Judgment is void. “A judgment void on its face because rendered when the court lacked personal or subject matter jurisdiction or exceeded its jurisdiction in granting relief which the court had no power to grant, is subject to ...
2019.6.17 Motion to Compel Further Production of Docs 963
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.6.17
Excerpt: ...eillance video taken of Plaintiff. Defendants decline to produce surveillance video of Plaintiff on the grounds of the qualified work product privilege. Plaintiff contended that the surveillance video was no protected under the work product rule and that there was a special need for the production of the tape. “The attorney work-product doctrine provides two levels of protection for attorney work product—absolute protection and qualified prot...
2019.6.10 Motion to Quash Service of Summons 285
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.6.10
Excerpt: ...resident defendant may be subject to general jurisdiction if his or her contacts with the forum are substantial, continuous and systematic. (See Vons Companies Inc. v. Seabest Foods, Inc. (1996) 14 Cal. 4th 434, 445.) Lowell Menorca II (“Menorca”) presented evidence to establish that the Court does not have general jurisdiction over Menorca, and Plaintiff does not dispute this argument. A nonresident defendant may be subject to specific juris...
2019.6.10 Demurrer, Motion to Strike 618
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.6.10
Excerpt: ...lar. Plaintiff failed to allege a cause of action for professional negligence. Plaintiff should re-draft these six causes of action. “'The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss o...
2019.6.10 Motion for Attorney Fees 731
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.6.10
Excerpt: ...propriate hours expended and hourly rates. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) Plaintiffs are entitled to recover fees as the prevailing buyers under Civil Code Section 1794(d). The lodestar method for calculating fees applies to statutory attorney's fee awards. (K.I. v. Wagner (2014) 225 Cal.App.4th 1412, 1425.) The trial court has broad authority to determine the reasonable amount fees to be awarded under the lode...
2019.6.10 Motion for Leave to File Complaint 827
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.6.10
Excerpt: ...court may, in furtherance of justice and on any terms as may be proper, allow a party to amend any pleading....' (Code Civ. Proc., § 473, subd. (a)(1).) However, the court's discretion will usually be exercised liberally to permit amendment of the pleadings. . . . The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. . . .'” Howard v. County of San Diego (2010) 184 Cal.App.4th 142...
2019.6.10 Motion for Summary Adjudication 869
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.6.10
Excerpt: ...pointed for the hearing.” Ordinarily, when a defendant files an opposition on the merits, any defect in service is waived. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697).) Here, however, not all defendants opposed the Motion. While Defendants Ge Diao and Leo Liu filed an Opposition to the motion for summary adjudication, Defendants Surterre Properties, Inc. and Rex McKown did not file an Opposition to Plaintiff's Motion for Summary Adjudicat...
2019.6.3 Demurrer 654
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.6.3
Excerpt: ... applicable statute of limitations. Section 338(d) applies to “[a]n action for relief on the ground of fraud or mistake.” (See also Federal Deposit Ins. Corp. v. Dintino (2008) 167 Cal.App.4th 333, 348 [applying section 338(d) to an unjust enrichment claim based on mistake].) Section 343 provides a four-year statute of limitations on all claims not otherwise provided for in the relevant code sections (Code Civ. Proc., §§ 335 et seq.). Here,...
2019.6.3 Demurrer 996
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.6.3
Excerpt: ... “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616. “A complaint, with certain exceptions, need only contain a ‘statement of the facts constituting the cause of action, in ordinary and concise language' (Code Civ. Proc., § 425.10, subd. (a)(1)) ...
2019.6.3 Motion to Vacate Arbitration Award 289
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.6.3
Excerpt: ...ubject to judicial review as a general rule. (Moncharsh v Heily & Blase (1992) 3 Cal.4th 1, 6, 10–11.) More specifically, courts may not review the validity of an arbitrator's reasoning or the sufficiency of the evidence supporting the arbitrator's award. (Id. at 11.) Judicial review of an arbitration award is limited exclusively to the statutory grounds for vacating or correcting the award. (Id. at 27– 28.) Plaintiffs contend that the arbitr...
2019.6.3 Motion to Consolidate, to Strike Punitive Damages, Demurrer 423
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.6.3
Excerpt: ...ns. The court will consider this issue at a later time. Motion No. 2: Individual Defendants' Motion to Strike is DENIED without prejudice. CRC Rule 3.1322 (a) provides that “A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” This Motion...
2019.6.3 Motion to Compel Further Responses 108
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.6.3
Excerpt: ...at the party will comply with the particular demand, a representation that the party lacks the ability to comply, and/or an objection to the particular demand. Plaintiff's statements of compliance do not state she “will” comply, but given that the production has already taken place and Defendant did not move on this deviation from Section 2031.220, this court will not compel compliance in that respect. Plaintiff's previous discovery responses...
2019.6.3 Motion to Compel Deposition 312
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.6.3
Excerpt: ...edure section § 2025.450. That section, however, relates to a party deponent. “The code applies by its language only to current officers, directors, managing agents, or employees. Persons formerly affiliated with a party (e.g., former officers or employees) are not required to attend a deposition unless subpoenaed.” (Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1398 (internal quotation marks and citations omitted).) Here, it is un...
2019.5.29 Petition to Confirm Arbitration Award 208
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.5.29
Excerpt: ...he moving papers. This court continued the hearing on this petition for Attorney Petrohilos to file the proper substitution of attorney forms, which Attorney Petrohilos has since done. The petition was timely and complies with all procedural requirements, and was duly served and filed. (Code Civ. Proc., §§ 1285.4, 1286, 1288, 1288.4.) Plaintiffs' request for post-award, prejudgment attorney's fees and costs is granted pursuant to a timely filed...
2019.5.29 Motion for Summary Judgment, Adjudication 728
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.5.29
Excerpt: ...to the filing of the documents and does not extend to the truth of any disputed factual matters therein. Defendants' objections to the Declaration of the City of San Bernardino are overruled. The court declines to rule on Defendants' remaining objections as they are not material to the disposition of the summary judgment motion. Plaintiff alleges that Defendants owed Plaintiff the level of skill and care that a reasonably careful lawyer would use...
2019.4.9 Motion for Summary Judgment, Adjudication 749
Location: Orange County
Judge: Lewis, Gregory
Hearing Date: 2019.4.9
Excerpt: ...�� discovery responses. Plaintiff's initial responses to RFPs and Special Interrogatories included only boilerplate objections. (Def.'s Ex. O, P.) Further, while Plaintiff did provide substantive responses to the Form Interrogatories, those interrogatories are not sufficiently comprehensive such that Plaintiff's responses preclude the possibility that Plaintiff may possess or reasonably obtain evidence sufficient to establish her claim. (Weber v....

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