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2019.7.19 Motion for Summary Adjudication
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.7.19
Excerpt: ...roof 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 need not ...
2019.7.19 Motion for Leave to Amend
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.7.19
Excerpt: ...cretion will usually be exercised liberally to permit amendment of the pleadings. Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428. The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. Id. No party has identified any prejudice from amendment. Plaintiffs' motion is therefore granted. Plaintiffs are ordered to file and serve the Second Amended Complaint attached to the ...
2019.7.19 Demurrer
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.7.19
Excerpt: ...llegations 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 inferred from t...
2019.7.19 Motion for Sanctions
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.7.19
Excerpt: ...mployment-based causes of action. On November 3, 2017, Plaintiff dismissed the second, third and fourth causes of action. On September 13, 2018, the court granted Ronald Zambrano and Carlin & Buchsbaum, LLP's motion to be relieved as counsel. On April 17, 2019, Plaintiff dismissed his case. Sanctions Defendant argues that the court should sanction Plaintiff and his former counsel because (i) Plaintiff lacked evidence demonstrating that Cecilio de...
2019.6.27 Right to Attach Order
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.6.27
Excerpt: ...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 zero. Cal. Civ. Proc. Code § 484.090(a)(1)-(4). A court may order the issuance o...
2019.6.27 Motion to Compel Neurological Exam
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.6.27
Excerpt: ...nation, “the party shall obtain 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...
2019.6.20 Petition to Compel Arbitration
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.6.20
Excerpt: ...n is simply a suit in equity seeking specific performance of that contract. Little v. 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 tr...
2019.6.20 Motion for Summary Judgment, Adjudication
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.6.20
Excerpt: ...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. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51. If a defendant does not mee...
2019.6.13 Motion for Leave to File Amended Complaint
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.6.13
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. Atkinson v. Elk Corp. (2003) 109 ...
2019.6.13 Motion to Enforce Settlement
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.6.13
Excerpt: ...tlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. Cal. Civ. Proc. Code § 664.6. Defendant contends that Plaintiffs and Defendant entered into a valid and binding settlement agreement before the court on February 25, 2019. In ruling on a motion to enter judgment pursuant to section 664.6, the trial court acts as a trier of fact. Kohn v. Jaymar- Ruby, Inc. (1994) 23 Cal.App.4 ...
2019.6.13 Demurrer
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.6.13
Excerpt: ...leading, 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 facts that have not been alleged in the complaint unless...
2019.6.13 Motion for New Trial
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.6.13
Excerpt: ...ommitted misconduct by allegedly relating personal experience during deliberations. See Cal. Civ. Proc. Code § 657(1), (2). Plaintiff also argues that the jury awarded inadequate damages, that the evidence was insufficient to justify the jury's comparative fault finding, and that the verdict was against the law. Seeid. § 657(5), (6). For the following reasons, Plaintiff's motion is denied. Irregularity in Proceedings (Cal. Civ. Proc. Code § 65...
2019.6.13 Motion to Strike or Tax Costs
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.6.13
Excerpt: ...erefore unnecessary to the litigation. For the following reasons, M.D.A.'s motion is denied. A prevailing party is usually entitled as a matter of right to recover costs in any action or proceeding. Cal. Civ. Proc. Code § 1032(b). If 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...
2019.6.6 Demurrer
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.6.6
Excerpt: ...verred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint'” subject to demurrer) (citation omitted). Conclusory allegations of defenses that do not apply to a plaintiff's claim are also subject to demurrer. See id. (conclusory allegation that plaintiff's claim barred by laches, where that equitable defense did not apply to plaintiff's claim, subject to demurrer); see also Quan...
2019.6.6 Application for Writ of Possession
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.6.6
Excerpt: ...ched to a foundation, the mobile home or manufactured home remains personal property and any security interest in such property is foreclosed pursuant to the California Commercial Code, as modified by the purchase money security interest principles applicable to mobile homes and manufactured homes. SeeCal. Health & Safety Code §§ 18075, 18075.6 & 18551(a). Defendant also argues that Plaintiff must first sell the mobile home, perfect title, serv...
2019.6.6 Petition to Compel Arbitration
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.6.6
Excerpt: ...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 testimony r...
2019.6.6 Motion to Enforce Settlement Agreement
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.6.6
Excerpt: ...Ret.)) dismissed this case on November 2, 2017. If requested by the parties, a trial court may retain jurisdiction over the parties to enforce a settlement until performance in full of the terms of the settlement. Cal. Civ. Proc. Code § 664.6. “Because of its summary nature, strict compliance with the requirements of section 664.6 is prerequisite to invoking the power of the court to impose a settlement agreement.” Mesa RHF Partners, L.P. v....
2019.6.6 Motion for Attorneys' Fees
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.6.6
Excerpt: ...g evidence that Defendant's employee(s) acted with recklessness or malice. The jury returned a verdict for Plaintiff Underwood on her negligence cause of action and for Plaintiff Swalve on her wrongful death cause of action. The jury awarded Plaintiff Underwood $600,000 on her elder abuse claim and $49,308.73 on her negligence claim. The jury awarded Plaintiff Swalve $750,000 on her wrongful death claim. The elder abuse and wrongful death awards ...
2019.5.30 Motion to Compel Further Responses
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.5.30
Excerpt: ...ia Code of Civil Procedure § 2030.220(a) states that “[e]ach answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.” “[P]arties, like witnesses, are required to state the truth, the whole truth, and nothing but the truth in answering written interrogatories.” Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783. “A party may not deliberately m...
2019.5.9 Motions in Limine
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.5.9
Excerpt: ...ums ICW paid in workers' compensation payments to Cortez. ICW moves in limine to preclude Agar from presenting a defense of comparative negligence on the part of Cortez. For the following reasons, both motions are denied. ICW is the workers' compensation insurer for Cortez's employer at the time of the incident. ICW intervened in the lawsuit to seek reimbursement of its expenditures for medical and disability payments to Cortez. Cortez settled wi...
2019.5.9 Motion for Sanctions
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.5.9
Excerpt: ...d under California Civil Procedure Code § 581, the trial court lacks jurisdiction to act further other than to award costs and attorney fees. Gogri v. Jack in the Box Inc. (2008) 166 Cal.App.4th 255, 268. Exceptions may apply, however. One such exception is post-judgment sanctions. As the court in Frank Annino & Sons Construction, Inc. v. McArthur Restaurants, Inc.(1989) 215 Cal.App.3d 353 stated “there is no basis in logic or public policy to...
2019.5.9 Motion for Attorneys' Fees
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.5.9
Excerpt: ...ffs' premature filing. The court thus addresses the motion on the merits. See Yuba Cypress Housing Partners, Ltd. v. Area Developers (2002) 98 Cal.App.4 th 1077, 1986. Plaintiffs' motion is not a motion for reconsideration pursuant to California Civil Procedure Code § 1008. Judge Chaffee's order denying Plaintiffs' prior motion for attorneys' fees and costs was expressly without prejudice. See 01/11/19 Order. Plaintiffs are the prevailing partie...
2019.5.9 Demurrer (2)
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.5.9
Excerpt: ... 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 demurrer tests ...
2019.5.9 Demurrer
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.5.9
Excerpt: .... 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 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. Be...
2019.5.9 Demurrer
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2019.5.9
Excerpt: ...ons, Defendants' demurrer is overruled. 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 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 ...

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