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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 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...
2023.04.28 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...
2023.04.21 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 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...
2023.03.24 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 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...
2023.03.17 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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