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2019.9.26 Motion for Summary Judgment, Adjudication 499
Location: Orange County
Judge: Melzer, Layne H
Hearing Date: 2019.9.26
Excerpt: ...t's disposition of the motion. In order to move for summary adjudication, the party moving must specify in its notice of motion and motion the claim, causes of action, or issues it is moving on. CRC 3.1350. The court has no power to adjudicate others. Maryland Cas. Co. v. Reeder (1990) 221 Cal. App. 3d 961, 974 n. 4; Homestead Savings v. Superior Court (1986) 179 Cal. App. 3d 494, 498. The noticed issues for summary adjudication must then be stat...
2019.9.19 Motion to Seal 155
Location: Orange County
Judge: Melzer, Layne H
Hearing Date: 2019.9.19
Excerpt: ...cation for an order sealing the record. The motion or application “must” be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” Cal. R. Ct. Rule 2.551(b)(1). The court may order that a record be filed under seal only if it expressly finds facts that establish that: there exists an overriding interest that overcomes the right of public access to the record; the overriding interest supports seali...
2019.9.19 Motion to Compel Answers 380
Location: Orange County
Judge: Melzer, Layne H
Hearing Date: 2019.9.19
Excerpt: ...efendant's second supplemental responses to the interrogatories. Pursuant to Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 409, it is within the Court's discretion as to whether to provide a ruling on the motion based on the further responses. Given the time and effort that has been put into the briefings and recent meet and confer efforts by the parties, the Court exercises its discretion and p...
2019.9.19 Motion for Joinder, to Strike 688
Location: Orange County
Judge: Melzer, Layne H
Hearing Date: 2019.9.19
Excerpt: ...he reasons set forth below. DEF Equaltox, LLC, Cranford L. Scott, MD and Cranford L. Scott, MD, Inc. 2. Motion to Strike Defendants Equaltox, LLC, erroneously sued as Equaltox, Inc., Cranford L. Scott, MD, Cranford L. Scott, MD, Inc., and Smensa seek an order striking paragraphs 53, 60, 68, 84, and 91 from the TAC and paragraph 6 from the prayer in the TAC. Defendants contend Plaintiffs have not shown they are entitled to attorney's fees pursuant...
2019.9.19 OSC Re Dismissal 477
Location: Orange County
Judge: Melzer, Layne H
Hearing Date: 2019.9.19
Excerpt: ...the trial for this case was continued roughly 30 days before it was to commence. But for this fortuitous continuance, this case would have proceeded to trial without the corporate defendant who would have likely been dismissed at the inception. Court also notes that $250 sanction remains unpaid and outstanding against Plaintiff's counsel for failure to appear at the MSC. The Court orders this sanction paid within 10 days. Court is inclined to dis...
2019.9.12 Motion to Compel Physical or Mental Exam 686
Location: Orange County
Judge: Melzer, Layne H
Hearing Date: 2019.9.12
Excerpt: ... Code Civ. Proc. § 2032.320(a). “Good cause” generally means there is a showing of both “relevancy to the subject matter” and “specific facts justifying discovery.” Cal. Prac. Guide Civ. Pro. Before Trial at ¶ 8:1557 (original emphasis) (citing Vinson v. Superior Court (1987) 43 Cal.3d 833, 840). Here, moving defendants have shown “good cause” for an order for leave to take a neuropsychological examination of plaintiff. Plaintif...
2019.9.12 Motion for Summary Judgment, Adjudication 276
Location: Orange County
Judge: Melzer, Layne H
Hearing Date: 2019.9.12
Excerpt: ...g on. CRC 3.1350. The court has no power to adjudicate others. Maryland Cas. Co. v. Reeder (1990) 221 Cal. App. 3d 961, 974 n. 4; Homestead Savings v. Superior Court (1986) 179 Cal. App. 3d 494, 498. The noticed issues for summary adjudication must then be stated, verbatim, in the separate statement. CRC 3.1350(b). The court did not consider new evidence submitted on reply. Generally speaking, new evidence may not be submitted on reply in support...
2019.9.12 Motion for Summary Judgment, Adjudication 000
Location: Orange County
Judge: Melzer, Layne H
Hearing Date: 2019.9.12
Excerpt: ...ontractor, to install the fire sprinkler system for the tower. (See SSUF No. 2). Further, it is undisputed that Plaintiff “only took directions regarding his work on the Project including safety protocols, directly from his supervisor at APEX, Paul.” (See SSUF No. 13). It is similarly undisputed that “[m]oving defendants were not the employers of Plaintiff Losey [and] [m]oving defendants had no part in training, equipping or directing the m...
2019.8.29 Motion for Summary Judgment, Adjudication 499
Location: Orange County
Judge: Melzer, Layne H
Hearing Date: 2019.8.29
Excerpt: ... the CDC's website about preventing construction falls. The court overrules Plaintiffs' objection nos. 1-29 to RDO's evidence. The court sustains objection nos. 1, 2, 4-7, 9-18 to the Declaration of Brad Avrit and overrules objection nos. 3, 8, The Privette v. Superior Court (1993) 5 Cal.4th 689 line of cases modifies the general tort rules under Civil Code section 1714. Plaintiffs' argument that a duty of care exists under Biakanja v. Irving (19...
2019.8.22 Demurrer, Motion to Strike 556
Location: Orange County
Judge: Melzer, Layne H
Hearing Date: 2019.8.22
Excerpt: ...., goods sold, work done, etc., and (3) nonpayment.'” Farmers Insurance Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460. To state a cause of action for money had and received, Plaintiff must allege Defendants “are indebted to the plaintiff in a certain sum ‘for money had and received by the defendant for the use of the plaintiff.'” Id. “Th[e] common count [of money had and received] is available in a great variety of situations and lie...
2019.8.22 Demurrer 148
Location: Orange County
Judge: Melzer, Layne H
Hearing Date: 2019.8.22
Excerpt: ... attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper(2011) 194 Ca...
2019.8.22 Motion for Summary Judgment, Adjudication 000
Location: Orange County
Judge: Melzer, Layne H
Hearing Date: 2019.8.22
Excerpt: ...larly, Objection No. 2 to the Declaration of Michael Overturf is SUSTAINED, for lack of foundation. Mr. Melendes offers insufficient foundation to testify to the conduct of all Maranatha employees, at the Del Amo Project site: While Mr. Melendes declares he is the “individual principally involved on behalf of Maranatha….regarding the Del Amo Motorsports project,” as noted by Plaintiff, he does not declare that he managed the work performed,...
2019.8.22 Motion to Strike Complaint 514
Location: Orange County
Judge: Melzer, Layne H
Hearing Date: 2019.8.22
Excerpt: ...event involves an additional egregious component— ‘oppression, fraud, or malice.' (Civ.Code, § 3294, subd. (a).)” College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 712. “[T]he Legislature has made it more difficult for plaintiffs to plead and prove such claims,” (id. at p. 712) including by amending section 3294 in 1987 “by increasing the plaintiff's burden of proving punitive damages at trial to ‘clear and convincing ...
2019.7.25 OSC Re Preliminary Injunction 542
Location: Orange County
Judge: Melzer, Layne H
Hearing Date: 2019.7.25
Excerpt: ... of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.” The purpose of CCP § 526(a)(3) is to preserve the status quo pending litigation. (See, Stockton v. Newman (1957) 148 Cal.App.2d 558, 563.) First, for an injunction to issue, the moving party must establish a likelihood of prevailing on the merits. (See San Francisco Newspaper Printing Co., Inc. v. Superior Court ...
2019.7.25 Motion to Quash Service of Summons 237
Location: Orange County
Judge: Melzer, Layne H
Hearing Date: 2019.7.25
Excerpt: ...ed section 474 to mean that plaintiff must be not only ignorant of the defendant's identity, but also ignorant of the facts giving rise to a cause of action against that defendant. General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 593–594. This requirement is satisfied even if plaintiff's lack of knowledge is due to his or her own negligence; “section 474 does not impose upon the plaintiff a duty to go in search of facts she d...
2019.7.25 Motion for Reconsideration 355
Location: Orange County
Judge: Melzer, Layne H
Hearing Date: 2019.7.25
Excerpt: ...e motion must also be accompanied by an affidavit from the moving party that states: (1) what application was previously made; (2) when and to what judge; (3) what order was made; and (4) what new or different facts, circumstances or law are claimed to be shown. Code Civ. Proc. § 1008(a). A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. New York Times Co. v. ...
2019.7.25 Demurrer, Motion to Strike 397
Location: Orange County
Judge: Melzer, Layne H
Hearing Date: 2019.7.25
Excerpt: ... 2nd cause of action for unfair business practices The UCL (B&P Code § 17200, et seq.) prohibits “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” A party only has standing to assert a Section 17200 claim if he or she has (i) “suffered injury in fact,” and (ii) lost money or property as a result of such unfair competition.” (Bus. & Prof. Code § 17204; see also Kwikse...
2019.6.13 Motion to Quash Subpoena 934
Location: Orange County
Judge: Melzer, Layne H
Hearing Date: 2019.6.13
Excerpt: ...71). This privilege should be differentiated from the privilege protecting confidential marital communications. (Evid. Code § 980). The privileges are two entirely separate and distinct privileges. (People v. Dorsey (1975) 46 Cal. App. 3d 706.) Here, the court finds that both apply. Plaintiff argues in Opposition that she discussed the ongoing alleged harassment and hostile work environment with witness Mrs. Hulme as it was occurring. But Mrs. H...
2019.6.13 Motion for Summary Judgment, Adjudication 380
Location: Orange County
Judge: Melzer, Layne H
Hearing Date: 2019.6.13
Excerpt: ... Plaintiff's supplemental request for judicial notice filed on 6/7/19 is DENIED. (See Evid. Code § 453 (“trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and [g]ives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request.”).) The Court did not consider Plaintiff's reply papers filed on 6/7/19, in r...
2019.6.13 Motion for Sanctions 432
Location: Orange County
Judge: Melzer, Layne H
Hearing Date: 2019.6.13
Excerpt: ...videntiary sanctions, or instructions to the jury, were to be fashioned. Failing to respond to an authorized method of discovery is a misuse of the discovery process. Code Civ. Proc. § 2023.010(d). So, too, is disobeying a court order to provide discovery. Id., subd. (g); Van Sickle v. Gilbert (2011) 196 Cal. App. 4 th 1495, 1516. Imposition of sanctions for misuse of discovery lies within the trial court's discretion. Doppes v. Bentley Motors, ...
2019.6.13 Demurrer, Motion to Strike 723
Location: Orange County
Judge: Melzer, Layne H
Hearing Date: 2019.6.13
Excerpt: ...ed. The general demurrers to the third cause of action for intentional infliction of emotional distress and fifth cause of action for public nuisance are sustained with 15 days leave to amend. The Court declines to consider Defendant's reply papers, because they were not filed “at least five court days before the hearing,” nor were they served by a method “reasonably calculated to ensure delivery to the other party or parties not later than...
2019.6.13 Demurrer, Motion to Strike 355
Location: Orange County
Judge: Melzer, Layne H
Hearing Date: 2019.6.13
Excerpt: ...e basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.” Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, 404, citing Delaney v. Baker (1999) 20 Cal. 4th 23, 34. Thus, when care of an elder is at issue, the statutory definition of neglect speaks not of the undertaking of services, but of the failure to provide care. Covenant Care,...
2019.5.23 Motion for Leave to File Amended Complaint 148
Location: Orange County
Judge: Melzer, Layne H
Hearing Date: 2019.5.23
Excerpt: ...correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. (Code Civ. Proc. § 473(a)(1).) California courts generally allow great liberality, at all stages of the proceeding, in permitting the amendment of pleadings in order to resolve cases on their merits. (IMO Development Corp. v. Dow Corning (1982) 135 Cal. App. 3d 451, 461.) This liberality only applies ...
2019.5.2 Motion to Quash Subpoena 834
Location: Orange County
Judge: Melzer, Layne H
Hearing Date: 2019.5.2
Excerpt: ...other policies limiting discoverability. [See, for example, Code Civ. Proc., § 2017.010 (privilege), Code Civ. Proc., § 1985.3 (consumer's right to privacy)]. In addition, deposition subpoenas may be attacked as unjustly burdensome and oppressive. [Code Civ. Proc., § 1987.1]. Plaintiff argues in Opposition that it just wants bank records relating to deposits and disbursements of funds in Sub-Account 900118 only. Thus, Plaintiff agrees to withd...
2019.5.2 Motion to Enforce Order 040
Location: Orange County
Judge: Melzer, Layne H
Hearing Date: 2019.5.2
Excerpt: ...s a modification of the court's 1/17/19 order. “[A] motion asking the trial court to decide the same matter previously ruled on is a motion for reconsideration under Code of Civil Procedure section 1008. (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶ 9:324.1, p. 9(I)–124 (rev. # 1, 2011).)” Powell v. County of Orange (2011) 197 Cal. App. 4 th 1573, 1577. When proper grounds are presented, a court ...

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