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2020.09.25 Petition to Compel Arbitration
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.09.25
Excerpt: ...following reasons, TCT's petition to compel arbitration is granted. The right to arbitration depends upon contract; a petition to compel arbitration 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 bur...
2020.09.25 Motion for Judgment on the Pleadings
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.09.25
Excerpt: ...the trial court is asked to determine whether the complaint raises an issue that can be resolved as a matter of law. Smiley v. Citibank (1995) 11 Cal.4 th 138, 146; Westly v. Board of Admin. (2003) 105 Cal.App.4 th 1095, 1114. Ordinarily, a general demurrer does not lie as to a portion of a cause of action, and if any part of a cause of action is properly pleaded, the demurrer will be overruled. Fire Ins. Exch., 116 Cal.App.4 th at 452. Like a de...
2020.09.25 Motion for Appellate Attorneys' Fees
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.09.25
Excerpt: ... reasons, Plaintiff's motion is granted in part and denied in part. California Civil Code §1794(d) provides that a prevailing plaintiff in a Song-Beverly case shall be allowed to recover a sum equal to the aggregate amount of costs and expenses, “including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” Ca...
2020.09.25 Demurrer (2)
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.09.25
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...
2020.09.25 Demurrer
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.09.25
Excerpt: ... 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 sufficiency of the compl...
2020.09.17 Motion to Quash Service of Summons
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.09.17
Excerpt: ....4 th 1470, 1486. Because Hana lacks capacity to defend this action based on its forfeited status, Hana's motion is denied. Plaintiff to give notice. Defendant Nicole Bermensolo's Motion to Set Aside Default Defendant Nicole Bermensolo moves pursuant to the court's “inherent equitable powers” and pursuant to California Civil Procedure Code §§ 415.20(b), 473(a), 473(b), and 473.5 to set aside the default entered against her on December 19, 2...
2020.09.17 Motion to Compel Arbitration
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.09.17
Excerpt: ... 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 received at the court's discretion, to reach a final determination. Id. GMRI has carried its burden of pro...
2020.09.17 Motion for Leave to Amend
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.09.17
Excerpt: ...part and denied in part. Plaintiffs filed their Complaint on April 8, 2019 and named Mitch Anderson, Richard Suitor, Catherine Suitor, and SRA Grand Prix as Defendants. Plaintiffs' Complaint alleged three causes of action: general negligence against all Defendants, motor vehicle negligence against Defendant Anderson, and premises liability against Defendants Richard Suitor, Catherine Suitor, and SRA Grand Prix. On September 24, 2019, Plaintiffs a...
2020.09.17 Motion for Judgment on the Pleadings
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.09.17
Excerpt: ... distress (NIED) in Plaintiff Kourt D. Williams' First Amended Complaint (FAC). For the following reasons, Defendants' motion is granted with leave to amend. A motion for judgment on the pleadings is the functional equivalent of a general demurrer, Fire Ins. Exch. v. Superior Ct. (2004) 116 Cal.App.4 th 446, 452, and has the same purpose and effect as a general demurrer, i.e., the trial court is asked to determine whether the complaint raises an ...
2020.09.10 Special Motion to Strike
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.09.10
Excerpt: ...t. For the following reasons, Defendants' motion is denied. The Association manages a common interest development that includes a business park and the parcel of vacant land at issue in this case. The vacant land is separate from the business park. Adams Decl. ¶ 10; see also Casey Decl. ¶ 10; Kulp Decl. ¶ 10.; Miller Decl. ¶ 10. Plaintiffs own property in the business park and are current members of the Association. Complaint ¶ 15. The Assoc...
2020.09.10 Motion to Strike or Tax Costs (2)
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.09.10
Excerpt: ...tness Fees On June 3, 2019, Defendant served each Plaintiff with a pretrial offer to compromise pursuant to California Civil Procedure Code § 998. See Cumba Decl. Ex. A. Defendant offered to compromise the case in exchange for a cost waiver. Id. Defendant's section 998 offers were accompanied by a letter from Defendant's counsel setting forth the reasons Defendant contended it would prevail in the case, stating that Defendant intended to move fo...
2020.09.10 Motion to Strike or Tax Costs
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.09.10
Excerpt: ...onter Decl. Ex. A (07/12/19 Offer to Compromise). Defendant offered to compromise the case for $20,000. Id. Plaintiff did not accept the offer. Defendant obtained a verdict in her favor at trial. Defendant filed a Memorandum of Costs seeking $82,359.97 in costs. Plaintiff argues that Defendant's section 998 offer is invalid because it was less than Plaintiff's medical expenses and thus had no reasonable prospect of acceptance and was not made in ...
2020.09.03 Motion for Summary Adjudication
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.09.03
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...
2020.09.03 Demurrer
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.09.03
Excerpt: ...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 they may be...
2020.08.27 Motions for Attorneys' Fees
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.08.27
Excerpt: ...ed School District move pursuant to California Civil Procedure Code § 1021.5 for awards of attorneys' fees in these five consolidated cases following the court's decision granting Petitioners' petition for writ of mandate. See 01/17/20 Judgment; 09/16/19 Statement of Decision. For the following reasons, Petitioners' motions are denied. CASH seeks an attorney's fees award of $352,735.00; Cypress and Savanna join CASH's motion. Bakersfield seeks a...
2020.08.27 Motion to Strike or Tax Costs
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.08.27
Excerpt: ...itled as a matter of right to recover costs in any action or proceeding. Cal. Civ. Proc. Code § 1032(b); see also Cal. Civ. Code § 1794(d). 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 or necessary. Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4 th 11,...
2020.08.27 Motion for Summary Judgment, Adjudication
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.08.27
Excerpt: ...summary judgment is granted. Plaintiff's application for entry of default judgments against Defendants SLC Adventures, LLC, SPN Automotive, LLC, and Steven P. Nero as Trustee of the Nero Living Trust is also granted. Plaintiff's application for entry of default judgments against Lisa Nero and Lisa L. Nero as Trustee of the Nero Living Trust is denied because Plaintiff dismissed those parties on August 20, 2020. A. Plaintiff's Summary Judgment Mot...
2020.08.27 Demurrer
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.08.27
Excerpt: ...hose 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 the matters alleged or are proper subjects of judicial notice....
2020.08.20 Motion to Quash Business Records Subpoena or for Protective Order
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.08.20
Excerpt: ...ion is granted in part and denied in part. The subpoena is limited as described below. The subpoena seeks (1) “[a]ny and all call logs pertaining to 911 calls associated with the Telenko residence . . . during the time period June 1, 2010 through the present;” (ii) “[a]ny and all audio files . . . pertaining to 911 calls associated with the Telenko residence . . . during the time period June 1, 2010 through the present;” (iii) “[a]ny an...
2020.08.20 Demurrer (2)
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.08.20
Excerpt: ...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 sufficiency...
2020.08.20 Demurrer
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.08.20
Excerpt: ... 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 they may be re...
2020.08.20 Demurrer
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.08.20
Excerpt: ... 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 they may be re...
2020.08.06 Motion for Summary Judgment
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.08.06
Excerpt: ...t Wells Fargo, with written instructions authorizing Wells Fargo to transfer $22,340 from TGNP's commercial bank account to PT General Carbon, a vendor of hookah charcoal based in Indonesia. Wells Fargo processed the written instructions and transferred the funds on March 13, 2018. After Haddadin authorized the transfer and left the bank, he returned to the bank and asked Herndon to recall the wire because Haddadin had determined that the charcoa...
2020.08.06 Motion for Summary Judgment
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.08.06
Excerpt: ... (1981) 120 Cal.App.3d 622, 630-31. For the following reasons, ABM's 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....
2020.08.06 Demurrer
Location: Orange County
Judge: McCormick, Melissa R
Hearing Date: 2020.08.06
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 infe...

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