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2020.01.27 Demurrer, Motion to Strike
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2020.01.27
Excerpt: ...l motion to strike is granted against plaintiffs Cheryl Pesci (individually), Patty Johnson, and Marianne Klee. These three plaintiffs shall pay $2340 in reasonable attorney fees to defendants. (See Code Civ. Proc., § 425.16, subd. (c).) The motion is denied against plaintiffs Robert Pesci (through his guardian Cheryl Pesci) and Jim Pesci. Defendants met their initial burden to show that the 1st cause of action for malicious prosecution is based...
2020.01.27 Demurrer
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2020.01.27
Excerpt: ...) 432 U.S. 333; see also 9/9/19 minute order.) The TAC still fails to allege facts showing the third Hunt factor: “neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” (Hunt, supra, 432 U.S. at p. 343.) While plaintiff has narrowed its claims and prayer for relief, the TAC still requires hundreds of minitrials to determine to whether defendants violated any particular member's d...
2020.01.27 Demurrer, Motion to Dismiss, for Attorney Fees
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2020.01.27
Excerpt: ...nti-SLAPP motion was frivolous – that is, totally and completely without merit and brought in bad faith. (See Code Civ. Proc., §§ 128.5, subd. (b)(2), 425.16, subd. (c)(1); see also Moore v. Shaw (2004) 116 Cal.App.4th 182, 199 (Moore); Visher v. City of Malibu (2005) 126 Cal.App.4th 364, 371 [“‘trial court may infer subjective bad faith from the pursuit of a frivolous tactic'”].) For 25 years, case law is clear that anti-SLAPP motions ...
2020.01.06 Demurrer (2)
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2020.01.06
Excerpt: ... a deed of trust need not be recorded. (See Haynes v. ENC Mortgage Corp. (2012) 205 Cal.App.4th 329, 336-37). The FAC also fails to allege facts showing plaintiffs have standing to challenge the assignment or that plaintiffs offered to tender the disputed loan proceeds. (See Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 43; Mendoza v. JPMorgan Chase Bank, NA (2016) 6 Cal.App.5th 802)). 2nd cause of action, wr...
2020.01.06 Demurrer
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2020.01.06
Excerpt: ...esorts to Godwin's Law: “This was ‘the dog of the Nazis' in World War II. Hitler's dog, ‘Blondie,' was a German Shepherd.” (SAC, Attachment One.) It is not enough to allege that all German shepherds are vicious. (See Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1371–1372 [breed characteristics insufficient]; see also Lundy v. California Realty (1985) 170 Cal.App.3d 813, 822 [“Neither do we believe judicial not...
2019.9.30 Demurrer
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2019.9.30
Excerpt: ...c., § 340.6, subd. (a); Foxen v. Carpenter (2016) 6 Cal.App.5th 284, 292; see also Compl. ¶¶ 3, 6-8, 29-57.) By 11/6/16, according to the face of the complaint and the judicially noticed documents, plaintiff knew the underlying facts (including his damages) and defendant had stopped representing plaintiff. (See Def. RJN, Ex. 1-2; Compl. ¶¶ 35- 36, 46, 55.) Thus, the last day to timely bring these claims was 11/6/17. (See Code Civ. Proc., § ...
2019.9.16 Motion to Tax Costs
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2019.9.16
Excerpt: ...f did not object. (See 11/5/18 minute order.) Both parties then attended mediation. Plaintiff did not exercise her right to withdraw from mediation. (See Cal. Rules of Court, rule 3.853.) Apparently, both parties thought it was worth their time to mediate. The parties had dueling summary judgment motions pending when they mediated. The court ultimately denied both motions, finding triable issues. (See 5/13/19 order.) Only nine days later, plainti...
2019.9.16 Demurrer, Motion to Strike (2)
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2019.9.16
Excerpt: ...917 [negligence elements]; FAC at Page 4, ¶ GN-1.) The FAC sufficiently alleges an unreasonable failure to restrain the dog. Whether it also alleges a failure to warn is immaterial. (See Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38-39 [demurrer overruled when allegations constitute any cause of action].) 2nd Cause of Action, Strict Liability. The court previously granted plaintiff leave to amend the strict liability ca...
2019.9.16 Demurrer, Motion to Strike
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2019.9.16
Excerpt: ...o. (2002) 29 Cal.4th 189, 199.) The FAC does so here. It alleges the lease required defendant “to maintain the roof and utility and plumbing systems in good order, condition, and repair.” (FAC ¶ 53.) That sufficiently alleges the substance of the relevant terms. Motion to Strike Defendant's motion to strike is denied. The FAC sufficiently supports the punitive damages claim. It alleges an intentional trespass, whereby defendant knew water wa...
2019.9.9 Demurrer (2)
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2019.9.9
Excerpt: ... “ambiguities can be clarified under modern discovery procedures.” (Ibid.) Defendants fail to show the FAC “on its face . . . [is] barred by a statute of limitations.” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007.) “Sometimes, it is difficult for demurrers based on the statute of limitations to succeed because (1) trial and appellate courts treat the demurrer as admitting all material facts properl...
2019.9.9 Demurrer
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2019.9.9
Excerpt: ...ss violation) through allegations like “Secretary Su has directed hearing officers . . . to decide against [plaintiff's members] in all misclassification hearings involving Owner Drivers, no matter the facts or the law.” (SAC ¶ 4; see Hunt v. Washington Apple Advertising Comm'n (1977) 432 U.S. 333.) Even so, the SAC still fails to allege the third Hunt factor: “neither the claim asserted nor the relief requested requires the participation ...
2019.8.26 Motion to Strike
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2019.8.26
Excerpt: ...dren and families are known to cross and/or play.” These allegations adequately plead despicable conduct. (See Lackner v. North (2006) 135 Cal.App.4th 1188, 1210-1213.) Defendant shall give notice. ...
2019.8.26 Motion for Attorney Fees
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2019.8.26
Excerpt: ... 570 hours, a reasonable rate for which would be $500 per hour. That makes a subtotal of $285,000. To this, the court add a 33% multiplier of $94,050. Plaintiff's counsel persevered through the death of his client, a defense verdict on the first trial, an appeal, and the loss of witnesses and evidence over many years. The total award is thus $379,050, which reflects an objectively reasonable award for the work in this case. (See PLCM Group v. Dre...
2019.8.26 Demurrer, Motion to Strike
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2019.8.26
Excerpt: ...l fails to state facts sufficient to constitute this cause of action. It still fails “‘to show an intention or purpose to convert the goods and to exercise ownership over them, or to prevent the owner from taking possession of the property'”].) (Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208, 222.) At best and putting aside contrary allegations, the SAC alleges defendants intentionally left their gate open. (See SAC ¶¶ 30- 37...
2019.8.19 Demurrer, Motion to Strike
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2019.8.19
Excerpt: ...ecessarily time-barred. (See Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.) None of the three documents upon which defendants rely shows on its face when plaintiff Dawn Thorson knew of the alleged misconduct. Exhibit 4 shows when plaintiff was appointed special administrator of the Posner estate, but it does not show what she knew. Exhibits 2 and 8 show what the other three plaintiffs knew, but they do not show what this p...
2019.8.19 Demurrer
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2019.8.19
Excerpt: ... ‘to out-of-state persons or corporations engaged in commerce.'” (Heritage Marketing & Ins. Services, Inc. v. Chrustawka (2008) 160 Cal.App.4th 754, 759.) “[S]ection 351 [does] not violate the commerce clause ‘when applied to a non-commercial defendant not engaged in interstate commerce.'” (Id. at p. 761.) The face of the FAC does not show any connection to interstate commerce. It does not allege defendants are nonresidents doing busine...
2019.8.5 Demurrer
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2019.8.5
Excerpt: ..., FSB (2010) 185 Cal.App.4th 1018, 1023; accord Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.) The SAC also fails to state facts sufficient to constitute this cause of action. It fails to allege “conduct that is so outrageous that it exceed[s] all bounds of that usually tolerated in a civilized community.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051, internal quotation marks omitted.) Nor does it allege “emotional distress of s...
2019.8.5 Motion for Summary Judgment
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2019.8.5
Excerpt: ...v. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851; see also Def. SSUF ¶¶ 24, 29, 33, 37.) But plaintiff met his shifted burden to show triable issues of material fact. (See Aguilar, supra, 25 Cal.4th at pp. 849-850; Code Civ. Proc., § 437c, subd. (p)(1); see also Pl. SSUF ¶¶ 24, 29, 33, 37.) Issue #2, General Negligence. By challenging this claim as duplicative of the professional negligence cl...
2019.7.29 Motion to Compel Arbitration
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2019.7.29
Excerpt: ...et its burden to show a written arbitration agreement exists that covers plaintiff's claims and is governed by the FAA. (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; Shepard v. Edward MacKay Enterprises, Inc. (2007) 148 Cal.App.4th 1092, 1101 [FAA]; see also Remy decl. ¶¶ 4-6 & Ex. A.) Plaintiff does not dispute signing the agreement. His failure to recall doing...
2019.7.29 Motion for Summary Judgment, for Sanctions
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2019.7.29
Excerpt: ...nt showed she does not have an adverse claim to plaintiff's interest in the subject property. The adverse claimant is the judgment creditor under the recorded support order. That would be plaintiff's ex-wife. (See Fitzgerald decl. ¶¶ 6, 8, Ex. 3; 5/16/19 Notice of Errata, Ex. A; Chen decl. ¶ 3, Ex. B; Hibert decl. ¶¶ 6-7; see also Code Civ. Proc., §§ 680.230, 680.240, 680.270, 697.320.) Plaintiff fails to meet his shifted burden to show a ...
2019.7.29 Motion for Reconsideration
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2019.7.29
Excerpt: ...e diligence have been presented earlier. (Code Civ. Proc. § 1008, subd. (a); see also Even Zohar Const. & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839; Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198-1200.) Plaintiffs' alternative request for a new trial is untimely in two ways. First, plaintiffs failed to file and serve a timely notice of intention. (See Code Civ. Proc., § 659.) Second, plaintiffs...
2019.7.22 Motion to Quash Service of Summons
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2019.7.22
Excerpt: ...alifornia with sufficient minimum contacts substantially related to this contract dispute. (See Pavlovich,supra, 29 Cal.4th at p. 269 [purposeful availment]; see also Goehring v. Superior Court (1998) 62 Cal.App.4th 894, 907 [contract factors]; accord Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 477-482 [same].) Plaintiff showed defendant reached out to plaintiff in California to initiate the transaction, then sent a representative to Cali...
2019.7.22 Motion for Terminating Sanctions
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2019.7.22
Excerpt: ...said: “I'm going to kill him. I'm going to rip his head right off.” The Los Angeles Superior Court issued a civil harassment restraining order protecting the witness from Mueller. The court heard live testimony from the witness and Mueller. It expressly found Mueller made a “clear, credible threat of violence.” Mueller also violently threatened an officer of this court. After insulting defense counsel, Mueller said “I'm bigger than you�...
2019.7.8 OSC Re Dismissal of Settled Case, Motion to Rescind Notice of Settlement
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2019.7.8
Excerpt: ... their posttrial settlement. The court need not assign blame – the parties either completed their settlement or they did not. Because this case has not settled, the court will issue its ruling forthwith. Plaintiffs' request for posttrial damages and relief is denied without prejudice. They have not shown the court retained jurisdiction to enforce the settlement by way of motion. (Cf. Code Civ. Proc., § 664.6.) The relief plaintiffs seek now wa...
2019.7.8 Motion to Vacate
Location: Orange County
Judge: Scott, Nathan
Hearing Date: 2019.7.8
Excerpt: ...sed by inexcusable neglect or avoidance of service. (See Code Civ. Proc. § 473.5; see also Trackman v. Kenney(2010) 187 Cal.App.4th 175, 180.) Finally, defendant has also not shown with admissible evidence that the entry of default was due to extrinsic fraud or mistake. The court grants plaintiff's request for judicial notice. It will take notice of the court records' existence, filing, and legal effect – but will not take notice of the truth ...

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