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2023.11.17 Demurrer 014
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.11.17
Excerpt: ...(2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff." (Coles v. Glaser (2016) 2 Cal.App.5th 384, 391.) A written contract may be pleaded either by its terms set out verbatim in the complaint, or a copy of the contract attached to the complaint and incorporated therein by reference, or by its legal effect. (Miles v. Deutsche Bank National Trust Company (2015) 236 Cal.App.4th ...
2023.11.03 Motions to Quash 990
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.11.03
Excerpt: ...ocuments. The court "may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person." (Code Civ. Proc., S 1987.1, subds. (a), (b).) The party claiming a violation of the constitutional right of privacy must "[1] establish a legally protected privacy interest, [2] an objectively reasonable expectation of privacy in the given circu...
2023.10.30 Special Motion to Strike 416
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.10.30
Excerpt: ...Appeal issued its opinion. (ROA 179 [case number G051416].) The May 6, 2022 order denying Defendant Sylvia Nuttall's special motion to strike (Code Civ. S 425.16) as to the third, fourth, fifth, eighth, ninth, and tenth causes of action was affirmed. The order was also affirmed with respect to allegations of theft and related misconduct, which in part, support the second, sixth, and seventh causes of acton. (ROA 179.) The Court of Appeal held tha...
2023.10.30 Motion to Quash Service of Summons and Complaint 662
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.10.30
Excerpt: ...e of the proof of service filed in this achon on May 24, 2023, is denied. It is unnecessary to ask the court to take judicial notice of materials previously filed in this case. A party may "simply call the court's attention to such papers." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) '1 9:53.1a.) Defendants move for an order quashing the service of summons and complaint purportedly effected by Plaintif...
2023.10.30 Motion to Compel Deposition 283
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.10.30
Excerpt: ...ed the deposition of Defendant to take place on December 15, 2022. (Bournazian Decl. '14-5, Exh. 3.) aut as the court previously ruled in a nearly identical motion, Defendant was in default from November 21, 2022 to July 7, 2023, and could not appear at the deposition. (See Req. for Entry of Default [ROA 14]; 5/19/2023 Minute order [ROA 521; 7/7/2023 Minute order [ROA 901.) Because defense counsel was unable to obtain a stipulation to set aside t...
2023.10.30 Demurrer to SAC 779
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.10.30
Excerpt: ...lt abuse/neglect. "The purpose of the [Elder Abuse Act] is essentally to protect a particularly vulnerable portion of the from gross mistreatment in the form of abuse and custodial neglect." (Delaney v. Baker (1999) 20 Cal.4th 23, 33.) Pursuant to Welfare and Institutions Code section 15610.57, neglect means the "negligent failure of any person having the care or custody of an elder or a dependent adult to exerc:ise that degree of care that a rea...
2023.10.20 Motion for Summary Judgment, Adjudication 810
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.10.20
Excerpt: ... properly electronically bookmarked. (See Cal. Rules of Court, rule 3.110(f)(4).) In addition, Plaintiffs filed those exhibits in five volumes, without indices as to what was in each volume. Each of the volumes was over pages, two were over pages. Some of the volumes started in the middle of an exhibit. Besides proper tabbing, a table of contents for each volume would have greatly assisted the court and its staff. Request for Judicial Notice Defe...
2023.10.20 Demurrer 104
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.10.20
Excerpt: ...s.) Merits The only cause of achon alleged against Airbnb is the first cause of action for strict products liability. The FAC alleges that Airbnb "supplied various products, specifically properties for short-term rentals, including but not limited to the property located at 16387 South Pacific Avenue, Sunset Beach, California 90742 (the (FAC, at '1 10.) Airbnb is a "broker of properties for short-term rentals" and placed the "Product into the str...
2023.10.13 Motion for Attorney Fees 118
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.10.13
Excerpt: ...l be an element of the costs of suit." Section 1717, (a) also states in relevant part: In any acton on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, s...
2023.10.13 Demurrer to FAC 986
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.10.13
Excerpt: ...ains the same for the entire action's duration. Aquino argues on demurrer that Pinon fails to allege compliance with the claim requirements of Probate Code sections 9351, 9370, and A plaintiffs right to recover against the decedent or the estate is contingent on having filed the claim on which the action is based in the probate proceedings or having presented it to the decedent's personal representative in accordance with the Probate Ctxle. (Prob...
2023.10.06 Demurrer 068
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.10.06
Excerpt: ...nperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff." (Coles v. Glaser (2015) 2 Cal.App.5th 384, 391.) Plaintiffs allege that the parties entered into a series of contracts: In 2015, Plaintiffs and Defendants entered into a series of contracts related to the opening of a potential Weinerschnitzel franchise including: (1) Advertising Association Agreement, (2) Franchise Agreement, (3) Addendum to the Franchise Agreemen...
2023.10.06 Demurrer 227
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.10.06
Excerpt: ...erein) or from matters outside the pleading which are judicially noticeable under Evidence Code sections 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 Cal.App.4th 399, 413.) On ...
2023.10.06 Motion for Contempt 475
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.10.06
Excerpt: ...ful disobedience." (Conn v. Superior Court (1987) 196 Cal.App.3d 774, 784.) A contempt proceeding is commenced by the filing of an affidavit showing the facts satisfying these four requirements (the "charging allegations"). (Code Civ. Proc., S 1211.) The affidavit frames the issues to be tried. (Reliable Enterprises, Inc. v. Superior Court (1984) 158 Cal.App.3d 604, 616.) The filing of a sufficient affidavit is a "jurisdictional prerequisite" to ...
2023.10.06 Motion to Compel Arbitration 797
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.10.06
Excerpt: ...icial notice of a recorded deed, but declining to do so where deed was not relevantl.) Defendant's request for judicial notce of Plaintiff's Complaint previously filed in this case is denied. "[Alll that is necessary is to call the court's attention to such papers." (We-I & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) '1 9.53.1a.) Federal Arbitration Act ("FAA") Defendant contends that the FAA applies. (Mot., a...
2023.10.06 Motion for Judgment on the Pleadings 903
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.10.06
Excerpt: ...fidavits, declarations, depositions, and other such material which was filed on behalf of the adverse party and which purports to contradict the allegations and contentions of the plaintiff. [Citation.]" (See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605.) Pursuant to Code of Civil Procedure secton 438, subdivision (b)(l), a party may move for judgment on the pleadings. A defendant may move for a judgment on the ple...
2023.10.06 Motion to Compel Further Responses 296
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.10.06
Excerpt: ...iality, trade secret, attorney-client privilege or work product but must provide a privilege log for the documents it withholds on these grounds. Meet and Confer Efforts Defendant argues that Plaintiff failed to sufficiently meet and confer. (Opp., at pp. 2-3.) Plaintiff's counsel sent a lengthy letter on May 25, 2023 discussing what it described as Defendant's deficient discovery responses to special interrogatories, form interrogatories, and re...
2023.10.06 Motion to Compel Further Responses 712
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.10.06
Excerpt: ...o the remainder of that item or category. (b) If the respond-ng party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following: (1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made. (2) Set forth clearly the extent of, and th...
2023.10.06 Requests for Sanctions 366
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.10.06
Excerpt: ... entitled "Defendants TWOC Enterprises 18 Corp. Formerly Known as the Walt Disney Company and Walt Disney Parks and Resorts U.S., Inc.'s Motion to Strike Plaintiffs' Untimely Opposition to Defendants' Motion for Contempt, Terminating Sanctions, and Monetary Sanctons in the Sum of and Reply to Plaintiffs' untimely Opposition to Defendants' Motion". (ROA 287.) It appears that because the caption of the document suggested that it was another motion,...
2023.09.15 Motion to Tax Costs 001
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.09.15
Excerpt: ...07, 813 [statute requires payment of only those costs and fees that were reasonably incurred].) "[Tlhe Legislature intended the word 'expenses' to cover items not included in the detailed statutory definition of 'costs.'" "Expenses" may "cover such out-of-pocket expenses as filing fees, expert witness fees, marshall's fees, etc., [which] should open the litigation process to everyone." (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 1...
2023.09.15 Motion to Compel Further Responses 653
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.09.15
Excerpt: ...ries on the grounds that the answer is evasive or incomplete. (Code Civ. Proc., S 2030.3W, subd. If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully answer the interrogatories. (Fairmont Ins. Co. v. Superior Court (2ff)O) 22 Cal.4th 245, 255.) No. 4 This interrogatory seeks the number of residents who developed sepsis and/or septic shtNk while residing at the facility fro...
2023.09.15 Motion for Trial Preference 890
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.09.15
Excerpt: ...is required to set the matter for trial within 120 days. Civ. Proc., S 35, subds. (a), "An affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party. The affidavit is not admissible for any purpose other than a motion for preference under subdivision (a) of Sect...
2023.09.15 Motion for Summary Judgment 659
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.09.15
Excerpt: ...ions do not comply with California Rules of Court, rule 3.1354(b) which provides that written objections to evidence must "[i]dentify the name of the document in which the specific material objected to is located," "[state] the exhibit, title, page and line number of the material objected to," and "[qluote or set forth the objectionable statement or material." Plaintiff objects to portions of Defendants' undisputed material facts in their separat...
2023.09.01 Motions to Compel Further Responses 637
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.09.01
Excerpt: ...ditional evidentiary matter with the reply should only be allowed in the exceptional case . . . ' and if permitted, the other party should be given the opportunity to respond.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) Reply evidence should not address substantive issues in the first instance but only fill gaps in the evidence created by opposition. (Id. at p. 1538.) Here, the court exercises its discretion and declines to consi...
2023.09.01 Motion to Compel Further Responses 836
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.09.01
Excerpt: ...Civil Procedure section 2031.310,subdivision (b)(1). To establish “good cause,” the burden is on the moving party to show both: (1) relevance to the subject matter (e.g., how the information in the document would tend to prove or disprove some issue in the case); and (2) specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Superior Court...
2023.09.01 Motion for Monetary Sanctions 648
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.09.01
Excerpt: ...n employer who drafts an arbitration agreement does not pay its share of required fees or costs to initiate arbitration within 30 days after they are due, the employer is in “material breach” of the agreement, in default of the arbitration, and waives it right to compel arbitration. (Code Civ. Proc., § 1281.97, subd. (a).) In the event of that material breach by the employer, the employee can elect to withdraw her claim from arbitration and ...
2023.08.25 Demurrer 399
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.08.25
Excerpt: ... consider this document to be the ordered Second Amended Complaint ("SAC"). This document was sent by express mail to defense counsel on May 3, 2023. (ROA 80, last page.) Plaintiff makes a vague reference to having sent defense counsel a "correction using U.S. Mail Express". ("Plaintiff's Response to Defendant's Motion and Motion to Strike Portions of Plaintiff's Second Amendments to First Complaint" [ROA 97].) Defendant's demurrer to SAC and mot...
2023.08.25 Motion to Compel Further Responses 297
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.08.25
Excerpt: ... (4) requests for admissions, set one, nos. 1-54, and 56-58. Separate Statements As noted in this July 21, 2023 rulings, co-Defendant HCI Systems, Inc.'s separate statements fail to comply with California Rules of Court, rule 3.1345. The separate statement is to be “a separate document filed and served with the discovery motion . . .” (Cal. Rules of Court, rule 3.1345(c) [emphasis added].) Here, Defendant's separate statements have the same d...
2023.08.18 Petition to Confirm Final Arbitration Award 973
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.08.18
Excerpt: ...titions to correct arbitration award, are denied. Procedural Issues The court treats Tear Drip's second petition to correct arbitration award (ROA 126) as a response to Oakshire's petition to confirm award. (Code Civ. Proc., § 1285.2.) The court notes that both sides failed to file timely responses. (Code Civ. Proc., § 1290.6 [response shall be served and filed within 10 days after service of the petition]; see Law Finance Group, LLC v. Key (20...
2023.08.18 Motions to Compel Further Discovery Responses 344
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.08.18
Excerpt: ...equests at issue. (See ROA 53, 55, 57, 64, 68.) For all of the motions at issue, Defendant's separate statements also failed to include the text of Plaintiffs' initial responses and thus failed to comply with California Rules of Court, rule 3.1345. Rule 3.1345(c)(2) requires the separate statement to include the text of each response, answer, or objection, and any further responses or answers. The separate statement is supposed to provide all the...
2023.08.18 Demurrer 275
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.08.18
Excerpt: ...hi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code sections 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 sufficien...
2023.08.11 Motion to Strike 915
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.08.11
Excerpt: ...urt may: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).) “...
2023.08.11 Motion to Compel Further Responses 052
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.08.11
Excerpt: ...t information for the court to determine when the 45-day period expired. Specifically, the court was not provided with the method of service of GM's verification. Depending on the method of service, it is possible that the motion was timely filed on July 5, 2023. Merits On receipt of the response to a document demand, the demanding party may move to compel a further response if any of the following apply: (1) a statement of compliance is incomple...
2023.08.11 Motion to Compel Arbitration 537
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.08.11
Excerpt: ...o nos. 1 and 3. Defendant filed a reply declaration of Mark Kimball in support of its reply. “The general rule of motion practice . . . is that new evidence is not permitted with reply papers . . . ‘[T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case . . . ' and if permitted, the other party should be given the opportunity to respond.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1...
2023.08.11 Demurrer, Motion for Judgment on the Pleadings 423
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.08.11
Excerpt: ...cessor in interest to The Bank of New York, National Association, as Trustee f/b/o holders of Structured Asset Mortgage Investments II Inc., Bear Stearns ALT-A Trust 2005-10, Mortgage Pass-Through Certificates, Series 2005-10) (collectively, “Moving Parties”) demur, and in the alternative, move for judgment on the pleadings, to the sixth cause of action for violation of Business and Professions section 17200 on the ground that Plaintiff Ariel...
2023.08.04 Motions to Quash Service of Summons 056
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.08.04
Excerpt: ...agraph 9 and Exhibit 3 Abdullah's objections to Joseph Dib's declaration:  Sustained: Paragraphs 6-31 and Exhibits A-C  Overruled: Paragraph 4 Abdullah's objections to Monica Dib's declaration:  Sustained: Paragraphs 6-9, 11-14 and Exhibits 2-3  Overruled: Paragraph 10 and Exhibits 1-4 Merits California courts “may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” (Co...
2023.08.04 Motion to Quash Deposition Subpoenas 376
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.08.04
Excerpt: ...osition subpoenas on Pan's insurance company. Yassa sought testimony from State Farm's custodian of records and person most knowledge authenticating two letters he had received from State Farm and describing facts and conclusions supporting the latter. (Meunch Decl., Exhs. A and B.) Applicable Law Any party to the action or the witness may bring a motion to quash a subpoena and may request the court to quash it entirely, modify it, or direct comp...
2023.08.04 Demurrer, Motion to Strike 715
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.08.04
Excerpt: ...1.) “Where a complaint is based on a written contract which is set out in full, a general demurrer to the complaint admits not only the contents of the instrument but also any pleaded meaning to which the instrument is reasonably susceptible.” (Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 239.) The Employment Protection Agreement stated in its recitals that it was only “intended to impose obligations on the ...
2023.07.28 Demurrer 697
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.07.28
Excerpt: ... which the court is permitted to take judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) Limited to the “four corners” as such, a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with sufficient detail to acquaint a defendant with the nature, source and extent of the claim. (Leek v. Cooper (...
2023.07.28 Motion to Compel Further Responses 367
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.07.28
Excerpt: ...howing good cause justifying the discovery sought by the inspection demand pursuant to Code Civ. Proc., § 2031.310, subd. (b)(1).) To establish good cause, the burden is on the moving party to show both: (1) relevance to the subject matter (e.g., how the information in the document would tend to prove or disprove some issue in the case); and (2) specific facts justifying discovery (e.g., why such information is necessary for trial preparation or...
2023.07.28 Motion for Attorney Fees 928
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.07.28
Excerpt: ...buyer in connection with the commencement and prosecution of such action.” Defendant General Motors, LLC does not dispute that Plaintiff is the prevailing parties under the Song- Beverly Act, as reflected in their settlement agreement. Plaintiff's right to seek an award of attorney fees and costs is a term of the settlement agreement. (See Barry Decl., Exh. 7, at p. 2 of 5.) To recover attorney's fees, a prevailing party bears the burden of dem...
2023.07.28 Motion to Compel Nonparty Deposition 708
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.07.28
Excerpt: ...e nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” (Cal. Rules of Court, rule 3.1346.) Michael Bakkers did not show that the notice or moving papers were properly served on nonparty Nigel Burns. (See Proof of Electronic Service and Overnight Mail [ROA 305].) Accordingly, the unopposed motion is denied. MOTION TO ...
2023.07.21 Request for Preliminary Injunction 662
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.07.21
Excerpt: ... Caza, California 92679 (“Subject Property”) during the pendency of this action. The request for preliminary injunction is granted. Service Deficiency As an initial matter, Plaintiffs did not show that they served the summons, complaint, moving papers in support of their request for a preliminary injunction, or OSC on HOA. Plaintiffs filed a proof of service showing Stuart Smith served the summons, complaint, supporting papers, and OSC on Leg...
2023.07.21 Motion to Compel Further Responses 297
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.07.21
Excerpt: ...lifornia Rules of Court, rule 3.1345. The separate statement is to be “a separate document filed and served with the discovery motion . . .” (Cal. Rules of Court, rule 3.1345(c) [emphasis added].) Here, Defendant included the separate statements in with the notice, memorandum of points and authorities, and evidence, in the same document. Despite this, the court will consider the moving papers in their entirety, but cautions defense counsel to...
2023.07.21 Demurrer 717
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.07.21
Excerpt: ...) 18 Cal.2d 872, 883.) A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Errors and confusion created by “the inept pleader” are to be forgiven if the pleading contains sufficient facts entitling plaintiff to relief. (Saunders v. Cariss (1990) 22...
2023.07.14 Motion to Enforce Settlement 588
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.07.14
Excerpt: ...eu of the defendants,” and for an award of attorneys' fees. Section 664.6 provides, in pertinent part: “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.” “If requested by the parties, the court may retain jurisdiction ove...
2023.07.14 Motion to Compel Further Responses 816
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.07.14
Excerpt: ...on as to each matter in dispute. Here, Plaintiffs propounded 65 demands. Each section as to why a further response is required is the same, including arguments and facts not relevant to the specific demand. The separate statement was largely unhelpful. Legal Standard On receipt of the response to a document demand, the demanding party may move to compel a further response if any of the following apply: (1) a statement of compliance is incomplete;...
2023.07.14 Motion for Protective Order 552
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.07.14
Excerpt: ...order to protect the party or deponent against “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b).) “The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.420, subd. (a).) Generally, the party seeking a protective order will be required to show that the burden, expense, or intrusiveness involved in the di...
2023.07.14 Motion for Attorney Fees 418
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.07.14
Excerpt: ...d because: (1) Plaintiff already recovered fees for the discovery motions; (2) the fees incurred in connection with Plaintiff's summary judgment motion are “excessive” and should be reduced by half; (3) the fees incurred for “Covid research” are not warranted because Defendants did not assert a “Covid defense”; and (4) other unspecified line items should be reduced by $2,501.40. A court assessing attorney fees begins with a touchstone...
2023.07.07 Motion to Set Aside Entry of Default 503
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.07.07
Excerpt: ...nce September 22, 2022. In that time period, they had discussed potential informal resolution of the matter or his office would file an answer on Defendant's behalf. He was even copied with discovery requests that were emailed to Defendant on November 11, 2022. (Fakhimi Decl., at ¶¶ 2-4.) On November 10, 2022, Plaintiff attempted to file a request for entry of judgment, which was rejected by the Clerk's office because of a deficiency. (ROA 11.)...
2023.07.07 Motion to Seal 254
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.07.07
Excerpt: ...n.” (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1208, fn. 25; see Cal. Rules of Ct., rule 2.550(c) [“Unless confidentiality is required by law, court records are presumed to be open.”].) Although that right is not absolute, the moving party has the burden to meet the requirements set forth in California Rules of Court 2.550-2.551. The motion or application “must” be accompanied by a memorandum and a declara...
2023.06.30 Demurrer 839
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.06.30
Excerpt: ...bility imposed by law” and that Plaintiff repeatedly informed Defendants of the defects. Defendants contend that since Plaintiff took possession of the Property in January 2016 and the conditions existed “at all relevant times” then Plaintiff's claims began to accrue in January 2016 and this action filed in December 2022 is untimely. “A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily...
2023.06.30 Motion to Quash Deposition Subpoenas 395
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.06.30
Excerpt: ...terms and conditions as the court shall declare including protective orders. In addition, the court may make any other order as may be appropriate to protect the moving party from unreasonable or oppressive demands including unreasonable violations of the moving party's right of privacy. (Code Civ. Proc., § 1987.1.) Grounds for the motion include that the records sought are not within the permissible scope of discovery, are protected by privacy ...
2023.06.30 Motion for Leave to File Complaint 307
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.06.30
Excerpt: ...e, "if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded." (Code Civ. Proc., § 426.30, subd. (a).) Here, Defendants' proposed claims for defamation, harassment, and in...
2023.06.30 Motion for Relief from Default 056
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.06.30
Excerpt: ...n the grounds of “mistake, inadvertence, surprise or excusable neglect.” A court may grant discretionary relief upon the moving party's showing of mistake, inadvertence, surprise or excusable neglect. (Leader v. Health Industries of Am., Inc. (2001) 89 Cal.App.4th 603, 615-616.) A defendant carries the burden of establishing inadvertence, surprise, mistake or excusable neglect by a preponderance of the evidence. (Transit Ads, Inc. v. Tanner M...
2023.06.23 Motion to Compel Further Responses 522
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.06.23
Excerpt: ... court has treated the motion as one to compel further responses from Kenneth Oda, as opposed to Defendant Kyle Oda, who is listed in the caption of the motion, notice of motion, and notice of errata. Legal Standard A party may move to compel further responses to interrogatories on the grounds that the answer is evasive or incomplete, an exercise of the option to produce documents under Code of Civil Procedure section 2030.230 is unwarranted or t...
2023.06.23 Motion for Summary Judgment 708
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.06.23
Excerpt: ...3, 5, 6, and 9. The request is denied as to nos. 1, 2, 4, 7 and 8. It is not necessary to request judicial notice of documents in the court file. “[A]ll that is necessary is to call the court's attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 9.53.1a.) Evidentiary Objections Bakkers' evidentiary objections are overruled. Summary Judgment/Adjudication Standard In both summar...
2023.06.16 Motion to Compel Further Responses 693
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.06.16
Excerpt: ...filing. But the court, in its discretion, may refuse to consider these papers in ruling on the motion. (Cal. Rules of Court, rule 3.1300(d); Kapitanski v. Von's Grocery Co., Inc. (1983) 146 Cal.App.3d 29, 32- 33.) Plaintiff's counsel points to the press of business as the reason he filed the opposition with only four court days' notice, in violation of Code of Civil Procedure section 1005, subdivision (b), which requires nine court days' notice. ...
2023.06.16 Motion to Compel Further Responses 367
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.06.16
Excerpt: ...provides: (a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits. (b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible. (c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good fai...
2023.06.09 Motion to Set Aside Defaults 056
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.06.09
Excerpt: ...rty's showing of mistake, inadvertence, surprise or excusable neglect. (Leader v. Health Industries of Am., Inc. (2001) 89 Cal.App.4th 603, 615-616.) A defendant carries the burden of establishing inadvertence, surprise, mistake or excusable neglect by a preponderance of the evidence. (Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 279.) “[T]he law favors disposing of cases on their merits.” (Fasuyi v. Permatex, Inc...
2023.06.09 Demurrer 037
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.06.09
Excerpt: ...orners” of the pleading – which includes the pleading, any exhibits attached, and matters of which the court is permitted to take judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) Limited to the “four corners” as such, a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with sufficient d...
2023.05.26 Motion to Compel Payment of Expert Deposition Fees 194
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.05.26
Excerpt: .... The deposition lasted for two hours. Roughan has been paid $500. There is a balance of $500. (Jones Decl., at 5-7, Exh. A.) Defendants do not oppose payment, and explain that a request for payment was sent to their insurance carrier on January 18, 2023. (Opp., at p. 4.) Defendants' carrier has had several months to pay the balance. The balance was originally due within five days of receipt of the itemized statement dated November 7, 2022. (See ...
2023.05.26 Demurrer, Motion to Strike 166
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.05.26
Excerpt: ...hout leave to amend. Special Demurrer Defendant argues that the first through sixth and tenth through twelfth causes of action are uncertain. A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures." (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Errors and confusion created by "the inept pleader" are to b...
2023.05.19 Demurrer 443
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.05.19
Excerpt: ...f which the court is permitted to take judicial notice. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) Limited to the "four corners" as such, a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with sufficient detail to acquaint a defendant with the nature, source and extent of the claim. (Leek v. Cooper (20...
2023.05.19 Demurrer 690
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.05.19
Excerpt: ...ial Council form instructs "(each complaint must have one or more causes of action attached)." However, Plaintiff only attached the Judicial Council form for a breach of contract cause of action. He failed to attach forms for common counts and quantum meruit. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) '1 6: 202 ["Tort and contract complaints require attachments: The other Judicial Council form complai...
2023.05.19 Motion for Relief from Waiver and Deemed Admissions 188
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.05.19
Excerpt: ...caused by untimely responses to interrogatories, requests for production of documents and requests for admission. To obtain relief, the party that waived objections must make a motion and the court must find "both of the following conditions are satisfied": (1) subsequent service of a substantially compliant response; and (2) that the "failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect." (Code Civ. Pr...
2023.05.19 Motion for Summary Judgment 264
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.05.19
Excerpt: ...able issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) "A prima facie showing is one that is sufficient to support the position of the party in question." (ld. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complet...
2023.05.19 Motion to Compel Further Responses 843
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.05.19
Excerpt: ...o the extent Plaintiffs seeks to compel further responses from Selman Chevrolet Co., it is denied. Code of Civil Procedure section 2031.010 provides, in relevant part, that "any party may obtain discovery" by "inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action." (Code Civ. Proc., S 2031.010, subd...
2023.05.12 Motions to Compel Further Responses 366
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.05.12
Excerpt: ...ts Defendant Walt Disney Parks and Resorts U.S., Inc.'s ("WDPR") motions to compel further responses by Russell to: (1) form interrogatories, set one, nos. 2.5-2.8, 2.11, 6.1-6.7, 7.1-7.3, 9.1-9.2, 10.1-10.3, 11.1-11.2, 12.1-12.7, 13.1-13.2, 14.1- 14.2, and 17.1; (2) special interrogatories, set one; (3) requests for production of documents, set one; and (4) requests for admissions, set one. Background On September 2, 2022, the discovery at issue...
2023.05.12 Motion to Strike Punitive Damages 648
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.05.12
Excerpt: ...uld be denied because Moving Defendants failed to adequately meet and confer prior to filing the instant motion. (Opp., at p. 4.) The failure to sufficiently meet and confer is not a ground to grant or deny the motion to strike. (Code Civ. Proc., S 435.5, subd. Waiver Plaintiff argues that her counsel entered into an agreement with a representative of Traveler's Insurance on January 10, 2023 to extend the deadline to respond to the representative...
2023.05.12 Motion to Lift Stay of Proceedings 583
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.05.12
Excerpt: ...iled the instant motion. Defendant objects to the supplemental memorandum. Plaintiff failed to obtain leave of court prior to filing the supplemental memorandum. Nevertheless, the court exercised its discretion in considering the Plaintiff's supplemental memorandum. Under Code of Civil Procedure section 1281.4, upon request of a party, when the court orders a case to arbitration, it shall also stay the action until arbitration is completed. The p...
2023.05.12 Motion to Compel Further Responses 398
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.05.12
Excerpt: ...ify any objection or failure to fully answer the interrogatories. (Fairmont Ins. Co. v. Superior court (2000) 22 cal.4th 245, 255.) Defendant asserts that Plaintiff filed the instant motion "without warning" and thus prematurely cut short the meet and confer process. (Opp. at 2.) Prior to filing a motion to compel further responses, the moving party must meet and confer with the responding party in a reasonable and good faith attempt to informall...
2023.05.12 Demurrer 779
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.05.12
Excerpt: ...led in this action on June 3, 2022. (Opp., at p. 2, fn. 1.) It is unnecessary to ask the court to take judicial notice of materials previously filed in this case. A party may "simply call the court's attention to such papers." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) g:53.1a.) Standing Bel Air Home contends Plaintiffs lack standing because they are bringing this action as successors-in-interest but ...
2023.05.05 Motion to Compel Arbitration 996
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.05.05
Excerpt: ...ontroversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof . . . shall be valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." (g U.S.C. 2.) "The 'principal purpose' of the FAA is to 'ensur[e] that private arbitration agreements are enforced according to their terms.'" (Lacayo v. Catalina Restaurant Group Inc. (2...
2023.05.05 Motion for Summary Judgment, Adjudication 623
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.05.05
Excerpt: ...v. State Farm Mutual Auto. Ins. co. (2012) 211 cal.App.4th 1, 8-9.) Defendant's Non-compliant Separate Statement In its notice, Defendant moved for summary judgment, or in the alternative summary adjudication "on the following grounds"' The undisputed evidence in this matter demonstrates that the DEFENDANT did act negligently. Further, DEFENDANT did not breach any duty owed to the PLAINTIFF since (1) DEFENDANT did not act recklessly while engagin...
2023.05.05 Motion for Summary Adjudication 777
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.05.05
Excerpt: ...aration, paragraphs 13 and 18, and Exhibits 12 and 17, are sustained. Defendant's remaining objections are overruled. Summary Adjudication Standard In both summary judgment and summary adjudication proceedings, the pleadings determine the scope of the relevant issues. (Port Medical Wellness, Inc. v. Connecticut Genera/ Life Ins. co. (2018) 24 cal.App.5th 153, 169; FPI Development v. Nakashima (1991) 231 Cal.App.3d 367, 381-382 [pleadings serve as...
2023.05.05 Motion for Prejudgment Interest 631
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.05.05
Excerpt: ... Code section 3287, subdivision (a), is denied because the damages were not "liquidated." Subdivision (a) provides, in relevant part, that person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day, except when the debtor is prevented by law, or by the act of the creditor...
2023.04.28 Motion to Strike or Tax Costs 631
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.04.28
Excerpt: ...arty" is entitled to costs "as a matter of right." A "prevailing party" includes: (1) the party with a net monetary recovery; (2) a defendant in whose favor a dismissal is entered; (3) a defendant where neither plaintiff nor defendant obtains any relief; and (4) a defendant as against those plaintiffs who do not recover any relief against that defendant. (Code Civ. Proc., S 1032, subd. The court has no discretion to deny prevailing party status t...
2023.04.28 Motion for Reconsideration 533
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.04.28
Excerpt: ...ginal ruling. (Code Civ. Proc., S 1008, subd. (a). ) The 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., S 1008, subd. A party seeking reconsideration also must provide a satisfactory explanation for the failure to prod...
2023.04.21 Motion to Compel Arbitration and Stay Proceedings 016
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.04.21
Excerpt: ...er Code of Civil Procedure section 1281.2, Defendants move for an order compelling arbitration of all claims in the Complaint and Cross-complaint. Defendants contend arbitration is mandatory pursuant to an arbitration provision in the "Design-Build Construction GMP Contract" (the "Contract"), a copy of which is attached to the motion as well as to the Complaint. The arbitration provision is found under "Article 23," entitled "ARBITRATION OF DISPU...
2023.04.21 Motion for Reconsideration 903
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.04.21
Excerpt: ...eeming Plaintiff Darrell Hallett a vexatious litigant, for a prefiling order, and requiring Plaintiff to furnish security in this action. The court ordered supplemental briefing. (3/3/2023 Minute Order; see Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108; Marriage of Barthold (2008) 158 cal.App.4th 1301, 1307-1308.) Having considered the parties' supplemental briefing, the court finds that only one aspect of the September 30, 2022 order that sho...
2023.04.21 Motion for Attorney Fees 450
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.04.21
Excerpt: ... may claim reasonable attorney's fees here under Civil Code 51717(a) and C.C.P. S 1033.5(a)(10)(A). The fees claimed are for services provided by in-house attorneys. Reasonable fees for in house counsel's services may be recovered if not duplicative of services provided by other attorneys on the matter. (Mix v. Tumanjan Development Corp. (2002) 102 Cal.App.4th 1318, 1324; PLCM Group v. Drexler (2000) 22 cal.4th 1084, 1093.) Here, the fees claimed...
2023.04.21 Demurrer, Motion to Strike 516
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.04.21
Excerpt: ...50 et seq.) protects consumers against numerous unfair and deceptive business practices specifically set forth in the CLRA and provides remedies and procedures for claims involving those practices. (Civ. Code, SS 1760, 1780- 1782.) At least 30 days before filing a suit seeking damages, the plaintiff must notify the potential defendant of the alleged violations and demand correction. (Civ. Code, S 1782.) This notice must be in writing and must be ...
2023.04.07 Motion to Strike Prayer for Relief 135
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.04.07
Excerpt: ...pression, fraud or malice" toward plaintiff is not alone enough to render the employer liable for punitive damages. (See Civ. Code, S 3294, subd. (b).) Civil Code section 3294, subdivision (b) imposes punitive damages liability where the corporate employer itself acted egregiously or knowingly failed to act in connection with its wrongdoing employee. The employer is not punished for the employee's wrongful act but rather for its own wrongful cond...
2023.04.07 Motion to Compel Further Responses 236
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.04.07
Excerpt: ... asking Plaintiff to admit this. Plaintiff objected on the grounds the information sought was not relevant or reasonably calculated to lead to the discovery of admissible evidence, was protected by his right to privacy, and that the requests violated Labor Code section 1171.5, Civil Code section 3339, and Government Code section 7285. In responding to RFAs, a party has a duty to answer as completely and straightforwardly as the information reason...
2023.04.07 Motion to Compel Deposition of PMQ 001
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.04.07
Excerpt: ...examination is requested, "the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent." (Code Civ. Proc., S 2025.230.) A written objection to a deposition notice must be served at least three calendar days prior to the date for whi...
2023.04.07 Motion for Summary Judgment 118
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.04.07
Excerpt: ...ing for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . " (Ibid.) "A prima facie showing is one that is sufficient to support the position of the party in question." (ld. at p. 851.) Where a plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a cause of action entitling him or her to judgment. (Code Civ...
2023.04.07 Demurrer 061
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.04.07
Excerpt: ... includes the pleading, any exhibits attached, and matters of which the court is permitted to take judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer "admit(s) all the properly pleaded material facts" and "even the most improbable alleged facts" are accepted as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.) Breach of Written Cont...
2023.03.24 Demurrer to FAC 399
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.03.24
Excerpt: ... third and fifth causes of action are uncertain. (Dem., at p. 2.) A special demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures." (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Errors and confusion created by "the inept pleader" are to be forgiven if the pleading contains sufficient facts entitling plain...
2023.03.24 Demurrer, Motion to Strike 915
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.03.24
Excerpt: ... to strike portions of the SAC is denied in part and granted with 15 days leave to amend in part, as set forth below. Defendant seeks an order striking the following language from Plaintiff's SAC: 1) "DEFENDANTS' interference with ETEKCITY's right of possession to its Products has been done maliciously and oppressively." (SAC, at '1 47, p. 9:23-24.) 2) "DEFENDANTS' interference with ETEKCITY's contractual relationships has been done maliciously a...
2023.03.24 Demurrer to SAC 068
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.03.24
Excerpt: ...performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff." (Coles v. Glaser (2016) 2 Cal. App. 5th 384, 391.) Plaintiffs allege breach of the written contracts: In 2016, Plaintiffs and Defendants entered into a series of contracts related to the opening of a potential Weinerschnitzel franchise including: (1) Advertising Association Agreement, (2) Franchise Agreement, (3) Addendum to the Franchis...
2023.03.24 Motion to Strike Answer 056
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.03.24
Excerpt: ... the court may impose whatever sanctions are just, including issue sanctions, evidence sanctions, terminating sanctions, and monetary sanctions. (Code Civ. Proc., S 2023.030.) Imposition of sanctions for misuse of discovery lies within the trial court's discretion. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, gel.) Once a party is ordered by the court to provide responses to discovery, continued failure to respond may result in the...
2023.03.17 Motion for Attorney Fees 631
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.03.17
Excerpt: ...le, 'which provides that each party to a lawsuit must ordinarily pay his own attorney fees.'" (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 806 [quoting Trope v. Katz (1995) 11 cal.4th 274, 2781.) Civil Code section 1717 governs fee awards for contractual fee-shifting clauses when an action is on a contract. Civil Code section 1717, subdivision (a) provides in relevant part: In any action on a contract, where the contract specifically provi...
2023.03.17 Demurrer to SAC 575
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.03.17
Excerpt: ...n a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) plaintiff's performance of the contract or excuse for nonperformance, (3) defendant's breach, and (4) resulting damage to the plaintiff." (Richman v. Hartley (2014) 224 cal.App.4th 1182, 1186; CACI no. 303.) Plaintiff alleges that the parties entered into a settlement agreement. (SAC, at 14, Exh. D.) He has performed all covenants and conditions. (SAC, at 2...
2023.03.17 Demurrer 423
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.03.17
Excerpt: ...k of New York as successor in interest to The Bank of New York, National Association, as Trustee f/b/o holders of Structured Asset Mortgage Investments II Inc., Bear Stearns ALT-A Trust 2005-10, Mortgage Pass-Through Certificates, Series 2005-10) ("BNYM") (collectively, "Demurring Defendants") demur to the first, second, third, fifth, and sixth causes of action of Plaintiffs Maximiliana Plascencia and Ariel Higareda's Complaint. Demurring Defenda...
2023.01.20 Motion to Transfer Venue 540
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.01.20
Excerpt: ...n January 6, 2023 (ROA 47.) The dismissal of Bob Baker Automotive, Inc. from the action, does not render the motion to transfer venue moot, as FCA US, LLC has joined the motion. The motion to transfer venue is granted. The parties' requests for judicial notice are granted. (Evid. Code, §§ 452.) Plaintiffs' claims are for violations of the Song-Beverly Consumer Warranty Act and the Magnuson-Moss Warranty Act, and for breach of implied warranty o...
2023.01.20 Motion to Enforce Settlement Agreement 484
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.01.20
Excerpt: ... pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” A court ruling on a motion...
2023.01.20 Motion to Compel Further Responses 773
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.01.20
Excerpt: ...cial notice of materials previously filed in the case. All that is necessary is to call the court's attention to such papers. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 9.53.1a.) Legal Standard A party may move to compel further responses to interrogatories on the grounds that the answer is evasive or incomplete, an exercise of the option to produce documents under Code of Civil Procedure section 2...
2023.01.13 Motions to Compel Further Responses 773
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.01.13
Excerpt: ...icial notice of materials previously filed in the case. All that is necessary is to call the court's attention to such papers. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 9.53.1a.) Legal Standard A party may move to compel further responses to interrogatories on the grounds that the answer is evasive or incomplete, an exercise of the option to produce documents under Code of Civil Procedure section ...
2023.01.13 Motion to Strike 795
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.01.13
Excerpt: ...edure and Rules of Court is expected by the court. Defendant's failure to satisfy its pre-filing meet and confer obligation is not a basis to deny the motion. (Code Civ. Proc., § 435.5, subd. (a)(4).) Rather, the motion is denied on its merits. A court may strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a cour...
2023.01.13 Motion to Strike 015
Location: Orange County
Judge: Servino, Deborah C
Hearing Date: 2023.01.13
Excerpt: ... the court. (Code Civ. Proc., § 436.) “Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not support by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) A motion to strike can also strike legal conclusions. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The ...

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