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2023.05.12 OSC Re Preliminary Injunction
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2023.05.12
Excerpt: ...laintiff to occupy the Property after the Closing Date." (Comp'. 14.) It is undisputed defendant sold the property to plaintiff and the sale closed, yet defendant remains in the property and has not let plaintiff occupy it. (See Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [elements]; see also Tchaghlassian decl. 2-14 & Ex. A; Suppl. Tchaghlassian decl. 3-12.) Contrary to defendant's contention (see Opp. at pp. 2-3), the unconsumm...
2023.05.12 Demurrer
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2023.05.12
Excerpt: ...ytoDyn of New Mexico, Inc. v. Amerimmune Pharmaceuticals, Inc. (2008) 160 Cal.App.4th 288, 297 [elements); Advanced Modular Sputtering, Inc. v. Superior Court (2005) 132 Cal.App.4th 826, 836 [reasonable particularity; more detail needed only in "highly specialized technical field"); see also FAC SITI 10 ["proprietary management tools, such as business analytics and productivity metrics . . . "J, 9-11, 21-30.) While Dowel/ "doubtCed] the continued...
2023.05.12 Motion for Summary Judgment, Adjudication
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2023.05.12
Excerpt: ...6 [elements for medical negligence]. ) First, defendant's SSUF #2-12 rely on (1) medical records that have not been properly authenticated, and (2) expert declarations that impermissibly recounts case-specific hearsay from unauthenticated medical records. (See People v. Sanchez (2016) 63 Cal.4th 665, 676- 677; see also Deane decl. Ex. B, Brown decl. 10-20; Ferrante decl. 3-20.) After plaintiffs filed their opposition — and after the court denie...
2023.05.05 Motion to Compel Responses
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2023.05.05
Excerpt: ...ff may limit its responses and production as follows. Request #20: 1/1/18 to present. Request #21: documents or plans relating to roofing only f17)m 1/1/17 through 12/31/18. Request No. 22: communications between plaintiff and Robert McCarthy regarding the premises (excluding communications with the homeowner or other contractors) Motion to compel re RFAs Defendant's motion to compel is granted as to RFAs & 11-12 and otherwise denied. (See Code C...
2023.04.28 Demurrer
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2023.04.28
Excerpt: ...under modern discovery procedures." (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) 7th cause of action. negligent misrepresentation {buyer's agent communication). The complaint states facts sufficient to state this cause of action by plaintiff April Arisian. (See Small v. Fritz Cos Inc. (2003) 30 Cal.4th 167, 173-174 [elements]; see also compl. 28, 79 [misrepresentation that "industrial zoning 'allows' a p...
2023.04.28 Demurrer
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2023.04.28
Excerpt: ...ays. 1st cause of actiom breach of written partnership agreement. The FAC states facts sufficient to constitute this cause of action. It adequately alleges "the legal effect of the contract," including the terms that were allegedly breached. (Construction Protective services, Inc. v. TIG specialty Ins. co. (2002) 29 cal.4th 189, 198-199; see also FAC 17-22, 67.) The complaint does not show "'on its face that the action was barred by a statute of ...
2023.04.21 Demurrers
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2023.04.21
Excerpt: ...nancial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) 1st cause of action. negligence. Defendants Thomas Courtney Dubar and Skyler Lambert do not demur to this cause of action. As to demurring defendants Ella Dubar, David Skorheim, and Eric Michael Massimo, the FAC states facts sufficient to constitute this cause of action. (See Ladd v. County of San Mateo (1996) 12 cal.4th 913, 917 [elements]; FAC 74 [duty], 36, 38, 40, 41, 4...
2023.03.24 Motion to Compel PMK
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2023.03.24
Excerpt: ...fer, referring the court to "the Declaration of Tyson R. Smith dated February 14, 2023 . 32-41, Exs. 10-15." (Reply at unnumbered p. 2.) The cited exhibits address defendants' 12/15/22 objections in one sentence: "Defendant inappropriately objected to every single one of Plaintiff's matters of examination claiming Plaintiff's defect definitions are vague and ambiguous, yet they are the same definitions used in Plaintiff's requests for production ...
2023.03.24 Motion to Amend Judgment
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2023.03.24
Excerpt: ...aordinary writ constitutes a final judgment for purposes of an appeal, even if the order is not accompanied by a separate formal judgment." (Molloy v. vu (2019) 42 cal.App.5th 746, 753, fn. 6.) There is no point in amending the superfluous 9/12/22 judgment, which does not materially modify the g/ 1/22 judgment. (See Civ. Code, S 3532.) Both adopt Option B. There is no material difference between (1) finding for petitioner in part and (2) finding ...
2023.03.24 Motion for Judgment on the Pleadings
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2023.03.24
Excerpt: ...p.4th 1316, 1324 [addressing demurrer).) (Flores Defendants have shown the complaint alleges facts showing they have statutory immunity under the EMS Act (Health & Saf. Code, SS 1797 et seq.), which "created a comprehensive system to govern virtually every aspect of prehospital emergency medical services." (Canister v. Emergency Ambulance Service, Inc. (2008) 160 Cal.App.4th 388, 398.) The EMS Act provides statutory immunity for personnel providi...
2023.03.17 Demurrer
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2023.03.17
Excerpt: ...sentation. The SAC still fails to state facts showing plaintiff complied with or is exempt from the Government Claims Act. (See 8/12/22 order [sustaining demurrer to FAC, citing authorities]; see also SAC 35-38, 42, 43, 48, 55 [seeking restoration of all consideration "advanced" to defendants], 57 [seeking "cancellation of the contracts and resulting taxes"] & Ex. C [g/ 12/16 HERO Assessment Contract requiring plaintiff to "pay for the solar pane...
2023.03.03 Motion to Compel Production of Docs
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2023.03.03
Excerpt: ...responsive documents within 30 days. Within the same 20 days, defendant also shall either (1) identify which documents it produced in response to Requests #33-34 (Code Civ. Proc., § 2031.280, subd. (a)) or (2) serve a complete, code-compliant, verified amended response stating it is unable to comply with those requests (Code Civ. Proc., §§ 2031.210, subd. (a)(2), 2031.230). If defendant withholds any document responsive to Request #40 for atto...
2023.02.24 Demurrer
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2023.02.24
Excerpt: ...st Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [elements]; Holland v. Morse Diesel Int'l. (2001) 86 Cal.App.4th 1443, 1447 [exhibits control over inconsistent allegations].) Plaintiffs do not allege any contract between themselves and Suk. (See FAC ¶¶ 24, 41-43 [alleging contract with defendant Thomas] & Exs. A, B1, B2 [written contracts to which Suk is not a party].) Notably, Suk is excluded from the FAC's definition of “defendants.”...
2023.02.24 Motion to Compel Arbitration
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2023.02.24
Excerpt: ...ndant met its initial burden to show a written arbitration agreement exists that covers plaintiff Sosa's claims. (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; Marden decl. ¶ 3 & Ex. B.) Defendant may compel arbitration although it is a “third party nonsignator[y] to the sales contract.” (Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486, 497.) In Felisilda, a...
2023.02.24 Motion for Attorney Fees
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2023.02.24
Excerpt: ..., as of a particular date. (Civ. Code, § 3287.) Plaintiffs' notice of motion also refers to prejudgment interest pursuant to Section 988 offers, but plaintiffs have not shown that they made any “offer . . . which the defendant [did] not accept” and subsequently obtained a more favorable judgment. (Civ. Code, § 3291.) Plaintiffs' attorney fee request is also denied. Plaintiffs “move pursuant to Civil Code § 1717 for an order directing Def...
2023.02.14 Motions to Compel Arbitration
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2023.02.14
Excerpt: ...ts initial burden to show a written arbitration agreement exists that covers plaintiffs' claims. (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; Lambert decl. ¶ 2 & Ex. A.) FCA may compel arbitration although it is a “third party nonsignator[y] to the sales contract.” (Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486, 497.) In Felisilda, a non-signatory manufa...
2023.02.14 Motion for Summary Judgment
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2023.02.14
Excerpt: ... they “fail[] as a matter of law because Plaintiff resigned his employment.” (Notion of Motion at p. 2 [Issue Nos. 1, 3].) These issues fail as phrased because they do not address the material allegations of the second amended complaint. (See Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 743-744 (Schmidlin) [“A motion for summary adjudication tenders only those issues ... specified in the notice of motion, and may only be grant...
2023.02.14 Demurrer, Motion to Strike
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2023.02.14
Excerpt: ...all have leave to file a fifth amended cross-complaint no later than 2/21/23. The scope of leave to amend is limited to alleging facts adding particularity to the allegation that a Cynosure representative misrepresented that cross-defendants could cancel the EFA at any time. (See 4AXC ¶ 16.) Procedural Issues. While the court is reviewing a 4th amended cross-complaint, this is only the second demurrer – and it challenges allegations that had n...
2023.02.03 Motion to Compel Arbitration
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2023.02.03
Excerpt: ...Defendant met its initial burden to show a written arbitration agreement exists that covers plaintiff's claims. (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; see also 9/2/22 Polyakov decl. ¶¶ 2-3 & Ex. 1; 1/27/23 Polyakov decl. ¶¶ 2-3 & Exs. 1-2.) Defendant met its initial burden to offer “a copy of the arbitration agreement purporting to bear [plaintiff's] ...
2023.02.03 Motion for Summary Judgment
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2023.02.03
Excerpt: ...ffirmative misrepresentation – Issues A1-A2 & B1-B2. (See Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974 [elements]; RSB Vineyards, LLC v. Orsi (2017) 15 Cal.App.5th 1089, 1102 [“misrepresentation requires an affirmative statement, not an implied assertion”]; see also SSUF Issue A1 ¶¶ 1-2, Issue A2 ¶¶ 1-4, Issue B1 ¶¶ 1-2, Issue B2 ¶¶ 1-4.) Cross-defendants further showed cross-complainants cannot show reliance...
2023.01.20 Motion to Compel Arbitration and Stay Action
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2023.01.20
Excerpt: ...ists that covers plaintiffs' claims. (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; Tang decl. ¶¶ 4-8 & Ex. 3 at pp. 2 [signed “Agreement to Arbitrate”], 3 [signed form 553-CA-ARB; signers acknowledge “the arbitration provision on the reverse side”], Ex. 4 [model form 553-CA-ARB containing complete arbitration terms].) Defendant need only offer “a copy ...
2023.01.20 Demurrer (2)
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2023.01.20
Excerpt: ...serve a 4th amended complaint within 10 days. Standing/Capacity. The TAC still fails to allege facts showing Nexus Health Management's standing. While plaintiffs correctly note the assignee of a claim has standing to pursue that claim (see Opp. at pp. 9-10), the TAC does not allege any such assignment. It merely alleges Nexus Health Management can “manage and direct” litigation (TAC ¶ 1), which is insufficient. Corporations always act throug...
2023.01.20 Demurrer
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2023.01.20
Excerpt: ...ng to her. (See Code Civ. Proc., § 377.60, subd. (a); Compl. ¶ 1.) The complaint also states facts sufficient in support of plaintiff's standing to maintain the survivor claims. (See Compl. ¶ 1.) Code of Civil Procedure section 377.32 “‘does not require that the affidavit be filed as a condition precedent to commencing or continuing the action.'” (Aghaian v. Minassian (2021) 64 Cal.App.5th 603, 614.) A failure “to immediately file [her...
2023.01.13 Motion for Summary Judgment, Adjudication
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2023.01.13
Excerpt: ...uty of care (see 12/13/21 order) is different that proving it to obtain summary judgment. A duty flows from statute, contract, or analysis of the Biakanja factors. (Sheen v. Wells Fargo Bank N.A. (2022) 12 Cal.5th 905, 920, 937-938.) Plaintiff has not shown any such basis for the alleged duty. Plaintiff asserts defendant owed it a duty “to inform [plaintiff] that it should pay the models immediately after the shoot or . . . . to inform [plainti...
2023.01.13 Demurrer (2)
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2023.01.13
Excerpt: ...ve Fault Between Tortfeasors.” (Opp. at p. 3.) “[I]ndemnification is not automatically available to a tortfeasor who, with another, injures the same plaintiff. Courts are obligated to make an evaluation of the case to determine if the application of the remedy is appropriate.” (Major Clients Agency v. Diemer (1998) 67 Cal.App.4th 1116, 1131-1132.) “To state a claim for indemnification, a defendant must allege that the same harm for which ...

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