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2024.06.17 Motion to Seal 061
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2024.06.17
Excerpt: ...cial Notice (ROA 16), and Declaration of Reid A. Winthrop (ROA 18) (collectively, the “Attachment Papers”) that Plaintiffs filed in support of their ex -parte applications for right to attach orders. Unless confidentiality is required by law, court records are presumed to be open. (C.R.C. 2.550(c).) A record cannot be filed under seal without a court order. (C.R.C. 2.551(a).) To grant a motion to seal, the court must expressly find: 1. an...
2024.06.17 Motion for Summary Judgment, Adjudication 216
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2024.06.17
Excerpt: ...to the plaintiff or cross -complainant” to show a triable issue of material fact. The language does not include co -defendants, nor does it simply refer to opposing parties, but rather specifically names and limits the opposing parties for a motion for summary judgment. Accordingly , Defendant Beach Front Property Management, Inc., as neither a Plaintiff nor a CrossComplainant, has no standing to oppose the present motion and the opposition pa...
2024.06.17 Motion for Summary Judgment, Adjudication 143
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2024.06.17
Excerpt: ...he moving party is entitled to judgment as a matter of law. (McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th 1111, 1119; C.C.P. § 437c(c).) To satisfy this burden, a defendant moving for summary judgment must establish that one or more of the elements of a caus e of action cannot be established or that a complete defense exists. (Id.; C.C.P. § 437c(o).) If the defendant meets this burden, the burden shifts to the plaintiff to show a t...
2024.06.17 Motion for Leave to File Amended Answer 845
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2024.06.17
Excerpt: ...urts are bound to apply a p olicy of great liberality in permitting amendments to the complaint “at any stage of the proceedings, up to and including trial,” absent prejudice to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) Absent prejudice, delay alone is not ground for denial. If delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. Indee...
2024.06.17 Demurrer, Motion to Strike 733
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2024.06.17
Excerpt: ...these defects were waived by Plaintiff opposing the motions on the merits (see Carlton v. Quint (2000) 77 Cal.App.4th 690, 697), Defendant is admonished to timely file proof of service for all future motions. Motion 1: Demurrer A. Statute of Frauds Defendant contends, for each cause of action, the FAC alleges an oral agreement for an interest in real property, which is in violation of the statute of frauds. Civil Code section 1624, subdivision (...
2024.06.10 OSC Re Preliminary Injunction 347
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2024.06.10
Excerpt: ...other, show satis factorily that sufficient grounds exist therefor.” (Civ. Proc. Code § 527(a).) “The general purpose of a preliminary injunction is to preserve the status quo pending a determination on the merits of the action.” (SB Liberty, LLC v. Isla Verde Assn., Inc . (2013) 217 Cal. App. 4th 272, 280.) The burden to prove all elements necessary to support the issuance of a PI is on the party seeking the relief. (O'Connell v. Supe...
2024.06.10 Motion to Strike or Reduce Costs 387
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2024.06.10
Excerpt: ... the party contesting th em to show that they were not reasonable or necessary. (FoothillDe Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29; Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 773- 74.) The party challenging costs does not m eet this burden by arguing that the costs were not necessary or reasonable, but must present evidence and prove that the costs are not recoverable. (Seever v. Copley P...
2024.06.10 Motion to Strike 859
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2024.06.10
Excerpt: ...deems proper: (a) Strike out any irr elevant, 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.” (Civ. Proc. Code § 436.) Defendant requests the court strike FAC ¶¶ 16, 30, and 35- 36 (“Paragraphs” together). Each of the Paragraphs contain allegations that were not included in Plaintiff's...
2024.06.10 Motion for Summary Judgment, Adjudication 287
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2024.06.10
Excerpt: ... an initial burden of pro duction to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1124.) A defendant...
2024.06.10 Demurrer 749
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2024.06.10
Excerpt: ...l.App.5th 237, 246, citing J.J. v. County of San Diego (2014) 223 Cal.App.4th 1214, 1219.) As the purpose of the Government Claims Act is to allow a public entity to evaluate a claim and settle without the cost of litigation, any attempt to file after already beginning a lawsui t does not satisfy the purpose of the Act. (Ibid.) Here, both the original Complaint and the FAC are completely devoid of any allegations as to presentation of a governme...
2024.06.10 Demurrer 615
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2024.06.10
Excerpt: ...laney v. Baker (1999) 20 Cal.4th 23, 34, 82); (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs (Sababin v Superior Court (2006) 144 Cal.App.4th 81, 85, 90); and (3) denied or withheld goods or services necessary to mee t the elder or dependent adult's basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff al...
2024.06.03 Motion for Summary Judgment, Adjudication 516
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2024.06.03
Excerpt: ...reasonably obtain, needed eviden ce.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854; see also, Code Civ. Proc., § 437c(p)(2).) “There is no obligation on the opposing party … to establish anything by affidavit unless and until the moving party has by affidavit stated fact s establishing every element … necessary to sustain a judgment in his favor.” (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468 (emph...
2024.06.03 Motion for Trial Preference 446
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2024.06.03
Excerpt: ...may petition the c ourt for a preference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole; (2) The health of the party is such that a preference is necessary to prevent prejudici ng the party's interest in the litigation.” MPs establish that they are each over 70 years of age. Further, they have a substantial interest in the action as they are ...
2024.05.13 Motions to Set Aside 061
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2024.05.13
Excerpt: ...ight Writs of At tachment issued on January 17, 2024. “[A]lthough in a motion under section 485.240 the defendant is the moving party, the plaintiff nevertheless continues to have the burden of proving (1) that his claim is one upon which an attachment may be issued and (2 ) the probable vali dity of such claim, th e same burden h e must meet under sec tio n 484.090.” ( Loeb & L oeb v. Beverly Glen Music (1985) 166 Cal.App.3d 1110, 1116.) Def...
2024.05.13 Motion to Vacate Arbitration, Stay Proceedings, for Sanctions 704
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2024.05.13
Excerpt: ... this “procedur al limbo.” (Gallo v. Wood Ranch USA, Inc. (2022) 81 Cal.App.5th 621, 634 (Gallo) [quoting legislative history].) The Legislature enacted section 1281.97 along with section 1281.98 and amended both sections in 2021. The former provision concerns fees due at the initiation of the arbitration. CCP § 1281.98 applies to fees and costs required during the arbitration to continue the proceeding. (Williams v. West Coast Hospitals, In...
2024.05.13 Motion to Compel Binding Arbitration 468
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2024.05.13
Excerpt: ...mpts state law bears the burden of proving the FAA applies. (See Woolls v. Superior Court (2005) 127 Cal.App.4th 197, 211.) Defendant bears the burden of proving the arbitration agreement is a “contract evidencing a transaction involving [interstate] commerce.” (9 U.S .C. § 2.) “Commerce,” for purposes of the FAA, generally includes employment contracts. (Circuit City v. Adams (2001) 532 U.S. 105, 113, 121) Priority submits evidence that...
2024.05.13 Motion for Summary Judgment, Adjudication 193
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2024.05.13
Excerpt: ... the allegation that, b etween March and November, the common area trash dumpsters “create a major nuisance as a source of fruit flies.” (TAC at ¶59) Plaintiff does not assert that the defendants put food or other items in the dumpsters which attracted fruit flies. Instead, pla intiff alleges that “defendants' efforts to abate the nuisance were completely inadequate.” (TAC at ¶66) This requires proof of negligence. “[T]hat proof of ...
2024.05.13 Motion for Summary Judgment 444
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2024.05.13
Excerpt: ...eclaration that the defendant's conduct fell within the community standard of care, or did not cause or contribute to the injury, the defendant is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607; Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984- 985.) Here, Defendants have met their initial burden. The expert opinion of Dr...
2024.05.13 Demurrer 122
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2024.05.13
Excerpt: ...rtgage Co. v. Reece (2001) 89 Cal.App.4th 731, 745.) Defendants demur to the breach of contract cause of action on the ground it is not sufficiently pled because Plaintiffs cannot allege their performance under the contract and fail to allege any damages resulting f rom any purported breach by Defendants since Plaintiffs were damaged by their own conduct and inability to meet their obligations under the loan received from Defendants. Here, the 4A...
2024.05.06 Motion to Quash Service of Summons 027
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2024.05.06
Excerpt: ... (1994) 24 Cal. App.4th 1426, 1444.) “When a defendant challenges the court's personal jurisdiction on the ground of improper service of process the burden is on the plaintiff to prove … the facts requisite to an effective service.” (Summers v. McClanahan (2006) 140 Cal. App.4th 403, 413, internal quotes omitted.) However, if a proof of service complies with the applicable statutory requirements, its filing creates a rebuttable presump...
2024.05.06 Motion for Summary Judgment 992
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2024.05.06
Excerpt: ...n a medical negligence claim, when a defendant moves for summary judgment and supports the motion with expert declarations that the defendant's conduct fell within the community standard of care, the defendant is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607.) Regarding causation, the plaintiff must offer an expert opinion that contains a reasoned...
2024.05.06 Demurrer, Motion to Strike 768
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2024.05.06
Excerpt: ... cross -complaint has b een filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: ¶ (e) The pleading does not state facts sufficient to constitute a cause of action. ¶ (f) The pleading is uncertain.” In this action, plaintiff alleges she was hired by Cao to provide caretaking assistance for Zhang at an Irvine residential property. Plaintiff also alleges Cao was a r...
2024.05.06 Demurrer 446
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2024.05.06
Excerpt: ..., no matter how u nlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial n otice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day v. Sharp (1975) 50 ...
2024.04.29 Motion to Compel Arbitration 742
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2024.04.29
Excerpt: ...�� the controversy. (Code C iv. Proc., § 1281.2.) The Court shall grant the petition unless the petitioner waived the right to compel arbitration or other grounds exist for rescission of the agreement. (Id.) “Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.” (Rosenthal v. Great Western Fin. Securities Corp....
2024.04.29 Motion for Summary Judgment, Adjudication 055
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2024.04.29
Excerpt: ...en of showing that a cause of a ction has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or crossdefendant has met that burden, the burden shifts to the plaintiff or cross -complainant to show that a triable issue of one or more material facts exists as to the cause of action or a...

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