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2020.01.16 Motion to Compel Further Responses
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.01.16
Excerpt: ... motion is denied. Special Interrogatories Nos. 48 through 55 seek (i) the identities (defined as names, last known residence and employment addresses, and telephone numbers) of each resident of Defendant's skilled nursing facility during the approximately three weeks (see Brief at 4:14- 16) Plaintiff resided at the facility; (ii) the identities of each “responsible party” (defined in a lengthy definition set forth in the interrogatories, and...
2020.01.16 Motion for Sanctions
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.01.16
Excerpt: ...s notice of motion for sanctions pursuant to section 128.7. Alliance appears to concede that the notice of motion served on October 28, 2019 did not contain a hearing date, ostensibly because Alliance could not reserve a hearing date more than 24 hours in advance, but the statute requires a 21-day safe harbor period. See Salisian Supp. Decl. ¶¶ 13-16. Alliance does not address why this issue could not have been raised with the court or court st...
2020.01.16 Motion for Sanctions
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.01.16
Excerpt: ...th, that are frivolous or solely intended to cause unnecessary delay.” To warrant sanctions under section 128.7(b)(1), a paper presented to the court must be presented “primarily” for an improper purpose. Cal. Civ. Proc. Code, § 128.7(b)(1). Sanctions may be imposed pursuant to section 128.7(b)(2) if a paper contains a claim, defense, or other legal contention that is not warranted by existing law or by nonfrivolous argument for the extens...
2020.01.16 Demurrer
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.01.16
Excerpt: ...fourth cause of action alleges trespass. This is a new cause of action that did not appear in Plaintiff's Complaint. Defendant correctly argues that following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order. Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4 th 1018, 1023. A plaintiff may not amend a complaint to a...
2019.9.26 Motion to Strike or Tax Costs
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.9.26
Excerpt: ... the items on a verified memorandum of costs appear to be proper charges, the memorandum is prima facie evidence of their propriety and the burden is on the party contesting them to show that they were not reasonable 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.4 th 765, 773-74. The party challenging costs does not meet this burden b...
2019.9.26 Motion to Compel Arbitration and Stay Action
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.9.26
Excerpt: ...on in a Services and License Agreement (SLA) between Polaroid Mobile, LLC (PLM) and GRBA. In a May 30, 2019 order, the court denied PLM's preliminary injunction motion seeking to enjoin GRBA from pursuing its claims against PLM in a pending arbitration before the American Arbitration Association (AAA). See OCSC Case No. 2019-01061625, 05/30/19 Order. This case has been deemed related to Case No. 2019-01061625. Plaintiff's Managing Member and PLM'...
2019.9.26 Motion for Summary Judgment
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.9.26
Excerpt: ...emonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51. If a defendant does not meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. Binder v. Aetna Life Ins. Co. (1999) 75 Cal...
2019.9.26 Motion for Leave to Amend
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.9.26
Excerpt: ...� The court's discretion will usually be exercised liberally to permit amendment of the pleadings. Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428. Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial, this policy should be applied only where no prejudice is shown to the adverse party. Magpali v. Farmers Group, Inc. (199...
2019.9.26 Demurrer
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.9.26
Excerpt: ...rer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the sufficiency of the complaint, a court will not consi...
2019.9.19 Demurrer
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.9.19
Excerpt: ...ates, Series 2007-HY5 and Select Portfolio Servicing, Inc. demur to Plaintiff Belinda Lee Cook's Complaint. Plaintiff did not file an opposition. For the following reasons, Defendant's demurrer is sustained without leave to amend. 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 pleadi...
2019.9.19 Motion for Summary Judgment, Adjudication
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.9.19
Excerpt: ...persuasion and burden of proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51. If a defendant does not meet this initial burde...
2019.9.19 Motion for Terminating and Monetary Sanctions
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.9.19
Excerpt: ...ode § 2023.010(g); Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516. A trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery and, in choosing a sanction, should attempt to tailor the sanction to the harm caused by the withheld discovery. Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992. The discovery statutes evince an incremental approach to discovery sanctions, starting...
2019.9.19 Petition to Compel Arbitration
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.9.19
Excerpt: .... Pullman (2013) 219 Cal.App.4 th 558, 565. The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. Id. In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary eviden...
2019.9.12 Motion for Summary Judgment, Adjudication
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.9.12
Excerpt: ...ing and/or retention claims. For the following reasons, Defendants' motion is denied. A defendant seeking summary judgment bears the burden of persuasion and burden of proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. Cal. ...
2019.9.12 Demurrer
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.9.12
Excerpt: ...llenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the sufficiency of the complaint, a court will not consider fac...
2019.9.5 Motion for Summary Judgment, Adjudication
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.9.5
Excerpt: ...den of proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51. If a defendant does not meet this initial burden, the plaintiff n...
2019.9.5 Motion to Strike
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.9.5
Excerpt: ...s-complaint on Defendant's behalf. Defendant's counsel subsequently filed a motion to be relieved as counsel, which the court granted on June 6, 2019. In its June 6, 2019 order, the court explained that Defendant, a limited liability company, could not represent itself and ordered Defendant to obtain counsel by July 8, 2019. See 06/06/19 Order. No attorney has filed an appearance on Defendant's behalf. Plaintiff argues that Defendant's counsel's ...
2019.8.29 Motion to Compel Compliance with Subpoenas
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.8.29
Excerpt: ...ndar cannot accommodate eight unscheduled motions on its August 29, 2019 law and motion calendar. Accordingly, as the court did with Defendant's prior similar motion, see 07/18/19 Order, the court will construe Defendant's motion as a motion to compel compliance with its subpoena to one of the nine subpoenas, i.e., the subpoena to US Healthworks Medical Center. Defendant's motion to compel compliance with the eight other subpoenas listed in Defen...
2019.8.29 Motion for Summary Judgment
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.8.29
Excerpt: ...nce to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51. If a defendant does not meet this initial burden, the plaintiff need not oppose the motion and the motion mus...
2019.8.29 Demurrer (2)
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.8.29
Excerpt: ...tained 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 pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc.(2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a de...
2019.8.29 Demurrer
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.8.29
Excerpt: ...factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc.(2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferr...
2019.8.22 Motion to Compel Arbitration
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.8.22
Excerpt: ....4 th 558, 565. The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. Id. In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimon...
2019.8.22 Motion for Summary Judgment
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.8.22
Excerpt: ...im has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51. If a defendant does not meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840. I...
2019.8.22 Demurrer
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.8.22
Excerpt: ... 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 pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc.(2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the su...
2019.8.15 Motion for Leave to Obtain Medical Exam
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.8.15
Excerpt: ... leave of court.” Cal. Civ. Proc. Code § 2032.310(a). A motion for an examination under section 2032.310(a) “shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty of any of the person or persons who will perform the examination.” Id. § 2032.310(b). The court shall grant the motion for a physical or mental examination under section 2032.310 only for good cause sho...

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