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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 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...
2020.03.09 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 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...
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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