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2023.01.13 Demurrer
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2023.01.13
Excerpt: ...0 days. [Note that plaintiff's motion for leave to amend the complaint to add a defendant and a new cause of action is already set for hearing on 4/14/23. That motion raises different issues than those presented on demurrer. The court is not now expressing any opinion on that motion.] Defendant Roman. The first amended complaint fails to state facts sufficient to constitute a cause of action against Roman. The FAC contains no allegations against ...
2022.12.23 Demurrer
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2022.12.23
Excerpt: ... (Ibid.) 3rd cause of action, public nuisance. The cross-complaint states facts sufficient to constitute this cause of action, whether based on the “noxious odor” or the allegedly unpermitted rentals. (See Civ. Code, § 3493 [allowing public nuisance claim by private individual]; Department of Fish & Game v. Superior Court (2011) 197 Cal.App.4th 1323, 1352 [elements]; see also Cross-compl. ¶¶ 12-14 [alleged nuisance conditions], 28-32 [nuis...
2022.10.07 Motion to Contest Good Faith Settlement
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2022.10.07
Excerpt: ...ts approximately 5% of plaintiff's total damages. (See Samaniego decl. ¶ 13; see also Opp. at p. 6.) That would pencil out to at least $37,500. (See Reply at p. 3 [plaintiff alleges $744,387 in past medical expenses].) This 5% approximation of Stater Bros.' potential liability to plaintiff is adequately based on the state of the evidence. (See Samaniego decl. ¶ 11 & Ex. A.) As the court noted in granting the food truck's MSJ, responsibility for...
2022.10.07 Motion to Compel Further Responses
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2022.10.07
Excerpt: ...nts for attorney-client privilege or work-product protection, it shall serve a privilege log within the same 30 days. The motion was timely filed and served on 6/29/22, within 45 days of defendant's 6/23/22 supplemental responses. (See Code Civ. Proc., § 2031.310, subd. (c) [motion due “within 45 days of the service of . . . any supplemental verified response”]; see also Hanks decl. ¶ 5 & Ex. A].) Defendant fails to substantiate its objecti...
2022.10.07 Motion to Compel Arbitration
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2022.10.07
Excerpt: ... commences. All parties are ordered to comply with the department pretrial order, which is available on the department website Arbitration Motion Defendants The Habit Restaurants Inc. and The Habit Restaurants LLC's motion to compel arbitration is denied. (See Code Civ. Proc. § 1281.2.) Defendants met their burden to show a written arbitration agreement exists that covers plaintiff's claims. (See Code Civ. Proc., § 1281.2; see also Rosenthal v....
2022.10.07 Motion for Reconsideration
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2022.10.07
Excerpt: ...ng on 12/2/20. (See 9/3/19 motion.) It was continued to 3/23/20. (See 10/24/19, 12/5/19, & 1/13/20 minute orders.) Plaintiffs' opposition was thus due on 3/10/22, but plaintiffs filed it on 3/16/20. The court was still conducting business as usual when plaintiffs filed the opposition. It had not yet issued any pandemic-related orders. After plaintiffs filed their untimely opposition and two days after any reply brief was due, the court continued ...
2022.10.07 Demurrer
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2022.10.07
Excerpt: ...t. As the opposition notes: “Whether or not Stein individually spoke with either of the plaintiffs makes no difference to Stein's liability . . . . Stein, as a co-conspirator, is responsible for the actions, misrepresentations, false promises, etc. of each and every co- conspirator in pursuit of the alleged fraud.” (Opp. at p. 8; accord IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 652 [conspiracy is “a form of vicarious liability by ...
2022.08.19 Motion for Summary Judgment
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2022.08.19
Excerpt: ...fendants used excessive force by (a) deploying a service dog and (2) firing rubber bullets. (See Compl. ¶¶ 8, 14.) On one hand, the excessive force allegation regarding the service dog would negate an element of his convictions for obstructing the dog's handler and causing injury to a police animal. In pleading guilty to those charges, plaintiff admitted he “obstructed the investigation by Officer Mullen and unlawfully harmed a police animal ...
2022.08.19 Motion for New Trial, to Stay Enforcement of Judgment
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2022.08.19
Excerpt: ...ode Civ. Proc., § 659a [10 days to file supporting documents]; Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 342 [this deadline is not jurisdictional].) Nonetheless, plaintiffs have not shown grounds for new trial. Whether the Jan. 16 Restatement (Ex. 25) required amendments to be in writing, is a separate question from whether the closing date was waived by Marc Spizzirri; Mach-1 presented evidence at trial supporting the latter. (See...
2022.08.12 Demurrer
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2022.08.12
Excerpt: ...esentation. As to all causes of action, the FAC fails to state facts showing plaintiff complied with – or is exempt from – the Government Claims Act. (See Gov. Code, §§ 905, 910, 911.2, and 945.4; State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239 [complaint failing to “allege “facts demonstrating or excusing compliance” fails to state cause of action]; Lozada v. City & Cty. of San Francisco (2006) 145 Cal.App.4th 1139...
2022.07.29 Motion to Compel Arbitration
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2022.07.29
Excerpt: ...s met their initial burden “of producing ‘prima facie evidence of a written agreement to arbitrate the controversy.' [Citation.] The moving party ‘can meet its initial burden by attaching to the [motion or] petition a copy of the arbitration agreement purporting to bear the [opposing party's] signature.'” (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165; see also Costa Decl. ¶ 2.) “For purposes of a petition to comp...
2022.07.29 Demurrer
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2022.07.29
Excerpt: .... Morse Diesel Int'l. (2001) 86 Cal.App.4th 1443, 1447 [exhibits control over inconsistent allegations]; see also Compl., Exs. A, B1, B2.) Second, with one exception, none of the alleged breaches (Compl. ¶¶ 15-25) are of any terms in the integrated written lease agreements. (See Compl. Exs. A, B1, B2, at § 19.01 [integration clause]; Code Civ. Proc., § 1856, subds. (a), (b) [parol evidence rule].) The exception is defendants' alleged failure ...
2022.07.22 Motion for Summary Judgment
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2022.07.22
Excerpt: ....4th 116, 134; Banke & Segal, Cal. Practice Guide: Civ. Proc. Before Trial, Statutes of Limitations (The Rutter Group 2022) ¶ 4:131.) Here, the undisputed facts show plaintiff filed this case on 11/4/20, more than 4 years after the 9/12/13 delivery. (See Def. SSUF #1, 28.) Plaintiffs have not met their shifted burden to show a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2) [burden].) 2nd cause of action, breach of expres...
2022.07.15 Motion for Summary Judgment, Adjudication
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2022.07.15
Excerpt: ...(Ms. Contreras) negligent supervision and training of the “Seniors on the Go!” drivers. (See Opp. at pp. 5- 6.) This theory is adequately pleaded. (See Compl. ¶27; cf. Lockhart v. County of Los Angeles (2007) 155 Cal.App.4th 289, 303.) Nor did defendant “affirmatively negate the existence of a duty.” (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 849.) It is reasonably foreseeable that someone requesting a “door to door” ride from ...
2022.06.17 Anti-SLAPP Motion
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2022.06.17
Excerpt: ...btain a dismissal of claims in the middle of litigation. . . .'” (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 645.) “Because the anti-SLAPP statute is designed to resolve these lawsuits early, but not to permit the abuse that delayed motions to strike might entail . . . a defendant must move to strike a cause of action within 60 days of service of the earliest complaint that contains that cause of act...
2022.06.10 Motion to Expunge Lis Pendens
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2022.06.10
Excerpt: ... 9-13, 18, 20, 22-26, 28 [transfer with actual intent to avoid obligations and resulting damages].) As plaintiff alleges actual fraudulent intent, she need not also allege constructive fraudulent intent. (Compare Civ. Code, § 3439.04, subd. (a)(1) with id., subd. (a)(2).) “Section 3439.04 is construed to mean a transfer is fraudulent if the provisions of either subdivision . . . are satisfied.” (Annod Corp. v. Hamilton & Samuels (2002) 100 C...
2022.06.10 Motion for Summary Judgment, Adjudication
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2022.06.10
Excerpt: ... Cal.4th 951, 974 [fraud elements]; Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150 [negligent misrepresentation elements]; see also X-Def. SSUF #7-9 & 23-24.) But cross-complainants met their shifted burden to show triable issues of material fact. (See Code Civ. Proc., § 437c, subd. (p)(1); Aguilar, supra, 25 Cal.4th at pp. 849- 850.) Specifically, triable issues exist as to whether cross-defendant intended Kan to rely o...
2022.06.10 Application for Right to Attach Order, Writ of Attachment
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2022.06.10
Excerpt: ...for unjust enrichment and money had and received. (See Santa Clara Waste Water Co. v. Allied World National Assurance Co. (2017) 18 Cal.App.5th 881, 886 [unjust enrichment claim alone is sufficient to support an order for prejudgment attachment]; Professional Tax Appeal v. Kennedy-Wilson Holdings, Inc. (2018) 29 Cal.App.5th 230, 238 [unjust enrichment elements]; Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [common count elements]...
2022.05.20 Motion for Summary Judgment, Adjudication
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2022.05.20
Excerpt: ...ield Co. (2001) 25 Cal.4th 826, 851 [burden]; see also 1/21/22 SSUF #28-46 [contract], 47 [performance], 86 & 107 [breach], 116 [damages].) But defendant Powernet Inc. met its shifted burden to show triable issues of material fact. (See Aguilar, supra, 25 Cal.4th at p. 851 [burden]; see e.g. 5/6/21 Opp. SSUF at responses to #17, 21-22, 25, 28, 46, 51, 56, 90, & 100.) Issue #2, Cross-complaint. Cross-defendants Greg Debenon and Lisa Debenon fail t...
2022.05.13 Motion for Attorney Fees
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2022.05.13
Excerpt: ..., minus $3,297.63 for unrecoverable costs. No multiplier is appropriate in this lightly litigated, straightforward case. While defendant complains generally about overstaffing and inefficiencies, “‘it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.'” (Lunada ...
2022.05.13 Anti-SLAPP Motion
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2022.05.13
Excerpt: ...or Offices & Marina, LLC v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 49 [burden]; Daniels, supra, 182 Cal.App.4th at p. 216 [elements].) To show malice, “‘plaintiff must plead and prove actual ill will or some improper ulterior motive.' Improper purposes can be established in cases in which, for instance: (1) the person bringing the suit does not believe that the claim may be held valid; (2) the proceeding is initiated primar...
2022.03.11 Demurrer (2)
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2022.03.11
Excerpt: ... to allege the “when, where . . . and by what means.” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793; see also FAC ¶¶ 45-46.) 5th cause of action, negligence. The FAC now states facts sufficient to constitute this cause of action. It is still true that “insurers are not ordinarily liable in negligence to their policyholders for failure to pay claims.” (9/13/21 order.) For this reason, some of the alleged misconduct w...
2022.03.11 Demurrer
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2022.03.11
Excerpt: ...tion, negligent misrepresentation. Plaintiff agrees to dismiss this cause of action. (Opp. at p. 5.) 3rd cause of action, Section 17200. The SAC fails to state facts sufficient to constitute this cause of action, which is predicated on the dismissed 1st and 2nd causes of action. (See Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1505; see also SAC ¶¶ 37, 44, 46- 59.) Plaintiff asserts this claim is based on defendant's violations of Civil Co...
2022.02.25 OSC Re Dismissal, Motion to Compel Arbitration
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2022.02.25
Excerpt: ...burden to show a written arbitration agreement exists that covers plaintiff's claims. (See Code Civ. Proc., § 1281.2; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; see also Thayer decl., Exs. A, B.) All of plaintiffs' causes of action “arise[] out of” or are “in connection with her employment or cessation of employment.” (Thayer decl., Ex. A at pp. 4-5.) Plaintiff met her burden to show some degr...
2022.02.25 Demurrer, Motion to Strike
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2022.02.25
Excerpt: ...; see also SAXC ¶¶ 20-27.) 4th cause of action, breach of fiduciary duty. The demurrer is moot in light of the ruling on the motion to strike. 5th cause of action, intentional interference. The SAXC fails to state facts sufficient to constitute this cause of action. This claim is based on contracts between the building's owners and residents. (See SAXC ¶¶ 6-8, 10, 19, 32-34.) As noted in sustaining the prior demurrer, a contracting party cann...

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