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2022.02.07 Demurrer 891
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2022.02.07
Excerpt: ...430.10(e) and (f). ““A constructive trust is an involuntary equitable trust created by operation of law as a remedy to compel the transfer of property from the person wrongfully holding it to the rightful owner. [Citations.] The essence of the theory of constructive trust is to prevent unjust enrichment and to prevent a person from taking advantage of his or her own wrongdoing. [Citations.]” [Citation.] Imposition of “[a] constructive tru...
2022.01.31 Motion to Quash or Limit Deposition Subpoena 710
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2022.01.31
Excerpt: ...nent's right to a fair trial. Courts attempt to balance the right of civil litigants to discover relevant information against the privacy interests of persons subject to discovery. (Id. at 1199.) “[A]lthough in seeking recovery for physical and mental injuries plaintiffs have unquestionably waived their physician-patient and psychotherapist-patient privileges as to all information concerning the medical conditions which they have put in issue, ...
2022.01.31 Motion to Quash 519
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2022.01.31
Excerpt: ...his motion, Plaintiff seeks to quash a subpoena issued by Defendant on August 24, 2021 on Michael A. Rubin, Inc. (¶10 of Steven Fernandez Declaration and Exhibit F thereto [pg. 48 of ROA No. 70]). The subpoena includes 12 categories of documents – all of which were initially opposed by Plaintiff. (Id.). Within the Reply, however, Plaintiff unconditionally withdraws his objections to Requests Nos. 6, 8, 9 and 12. (Reply: 1:20-2:9). Additionally...
2022.01.31 Motion to Compel Arbitration 981
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2022.01.31
Excerpt: ...refuses to arbitrate that controversy, the court must order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (1) the right to compel arbitration has been waived by the petitioner; (2) grounds exist for rescission of the agreement; or (3) a party to the arbitration agreement is also a party to a pending court action or special proceedin...
2022.01.31 Motion for Leave to File Complaint 098
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2022.01.31
Excerpt: ... is being sued is attributable, at least in part, to the cross- defendant. (American Motorcycle Ass'n v. Superior Court (1978) 20 Cal.3d 578, 607; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) § 6:529.) “Cross complaints for comparative equitable indemnity would appear virtually always transactionally related to the main action.” (Time for Living, Inc. v. Guy Hatfield Homes/All American Develop. Co. ...
2021.12.13 Petition to Compel Arbitration and Stay Proceedings 704
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2021.12.13
Excerpt: ...If met, the burden then shifts to the resisting party “to demonstrate that an arbitration clause cannot be interpreted to require arbitration of the dispute.” Buckhorn v. St. Judge Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406. “Any doubt on the issue must be resolved in favor of arbitration.” Id. Here, Ex. A to the Declaration of Erick J. Becker is the signed Arbitration Agreement. Plaintiff does not dispute the existence of t...
2021.12.13 Motion to Quash 264
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2021.12.13
Excerpt: ... made by party counsel at the Informal Discovery Conference and the court's 11/16/21 Minute Order (ROA #503), Plaintiff indicated that the MTQ was withdrawn as to all the Doctors. Additionally, defense counsel in his declaration stated that he agreed not to depose the Doctors. Mendoza Decl. ¶ 2. The court notes that Mendoza's declaration also states he agreed not to depose Arburua, however the opposition contains arguments that Arburua's deposit...
2021.12.13 Motion for Summary Adjudication 449
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2021.12.13
Excerpt: ...'s twenty-fourth affirmative defense, Failure of Condition Precedent. For the reasons discussed below, the Motion is DENIED. A. Issue 1: First cause of action (Breach of Contract) Plaintiff has met its initial burden of demonstrating that there is no triable issue on the breach of contract claim. Under California law, the elements of a cause of action for breach of contract are: (1) the existence of the contract, (2) plaintiff's performance or ex...
2021.12.13 Motion for Protective Order 862
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2021.12.13
Excerpt: ... justice requires to protect any party “from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b).) The party seeking a protective order bears the burden of proving that good cause exists for the order. (Emerson Electric Company v. Superior Court (1997) 16 Cal.4th 1101, 1110.) A decision granting or denying a motion for protective order is reviewable for an abuse of discre...
2021.12.06 Motion to Compel Arbitration 335
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2021.12.06
Excerpt: ...nt against CPM arises out the Property Management Agreement entered into between CPM and Morland (Ex. B to the Cross-Complaint) in which there is no arbitration agreement. CCP §1281.2 allows a party to an arbitration agreement to petition the court for an order compelling the petitioner and respondent to arbitrate a controversy, if the court determines that an agreement to arbitrate the controversy exists. The party petitioning to compel arbitra...
2021.12.06 Application for Writ of Possession 027
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2021.12.06
Excerpt: ...e where the property is located to the best of plaintiff's knowledge, information and belief, and if held within a private place which may have to be entered to take possession, a showing that there is probable cause to believe that such property is located there. (C.C.P. § 512.010(b)(1)-(b)(5).) Plaintiff here has not met these requirements. The Plummer Decl. submitted with the Application states that title to the Ford was held by Plaintiff's f...
2021.11.29 Motion for Reconsideration 798
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2021.11.29
Excerpt: ...court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.” It also requires the party making the...
2021.11.29 Motion to Compel Deposition 432
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2021.11.29
Excerpt: ...cing party may move for an order compelling the deponent's attendance and testimony, and the production of any document described in the deposition notice. The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce documents, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. C.C.P. § 2025.450(b)...
2021.11.15 Motion to Compel Further Deposition 264
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2021.11.15
Excerpt: ...riate pursuant to Civ. Proc. Code § 2034.460(a). As for Roughan's income from expert witness employment, “The compensation and expenses paid or to be paid to an expert witness by the party calling him is a proper subject of inquiry by any adverse party as relevant to the credibility of the witness and the weight of his testimony.” Evid. Code § 722. Although an expert is not required to give precise information as to their income from expert...
2021.11.15 Motion to Compel Arbitration 854
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2021.11.15
Excerpt: ..., authenticates a copy of the agreement himself. (¶21-¶22 of Dawson Declaration and Exhibit A thereto). Attached as Exhibit A to the Dawson Declaration is a “Dispute Resolution Agreement” wherein Plaintiff and Defendant Fletcher Jones Motor Cars, Inc. agreed “to utilize binding individual arbitration to resolve all disputes that might arise out of or be related in any way to [Plaintiff's] employment by the Dealership.” (See §1 of Exhib...
2021.11.15 Demurrer 879
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2021.11.15
Excerpt: ...believes he can amend to cure that defect). The Demurrer as to COAs 1 and 2 is SUSTAINED with 20 days leave to amend. Fraud claims must be specifically pled, including how, when, where, to whom, and by what means the representations were tendered, and, when against an entity, the persons who made the misrepresentations, their authority to speak for the entity, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann ...
2021.11.15 Demurrer 092
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2021.11.15
Excerpt: ...ff to show the manner in which she may amend, and how the amendment will change the legal effect of the pleading.” Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. Additionally, leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law. Lawrence v. Bank of Am. (1985) 163 Cal.App.3d 431, 436. Here, the Complaint fails to state sufficient facts to constitute...
2021.11.5 Motion for Summary Judgment, Adjudication 142
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2021.11.5
Excerpt: ...d for a hearing date less than 30 days before trial, unless the court finds good cause before the motion is filed. Here, the Motion was filed on 08/27/21 and noticed for 11/15/21. At that time, trial was scheduled for 12/13/21. Therefore, when the Motion was served, it was noticed for a date less than 30 days before trial and was thus untimely. Cross-Defendants did not move ex parte for relief until almost two months later, on 10/20/21, but their...
2021.10.18 Motion to Compel Further Responses 404
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2021.10.18
Excerpt: ... part and DENIED in part. As a preliminary matter, Ingeborg opposes all motions on the grounds that she is suffering from dementia as set forth in letters dated 9/27/2018 (from internal medicine physician, Dr. Daniel Sterns) and 9/25/2018 (from neurologist, Dr. Dean Le). It was recommended at that time (3 years ago) that Sandra Kane be granted conservatorship and power of attorney, yet no guardian ad litem was appointed for this action and Ingebo...
2021.10.18 Motion for Protective Order 497
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2021.10.18
Excerpt: ...as appeared in an action or proceeding and who provides an electronic service address, electronically serve the requesting party with any notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission. (Emergency Rule 12; C.C.P. § 1010.6(e).) Defendants have shown that they made such a request on 7/28/20. (Baghdassarian Decl., ¶ 6, Ex. F.) Yet Plaintiff's counsel admits that he has refused to electron...
2021.10.18 Demurrer, Motion to Strike 972
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2021.10.18
Excerpt: ...LC (“MIP”) on 4/30/21 as to the Third Amended Cross-Complaint (the “TAXC”) filed on 2/24/21by Cross-Complainants Leila, individually and derivatively on behalf of K&C, and Wagih; and (3) The Motion to Strike filed by Cross-Defendants Karame, MMI and MIP on 10/16/20, as to the TAXC. I. The Demurrer to the TAC The Chayas' Demurrer is OVERRULED. For the First Cause of Action (“COA”), the TAC now specifically alleges that Karame and MMI o...
2021.10.18 Demurrer 546
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2021.10.18
Excerpt: ... 2 Cal.4th 962, 966-967; Serrano v. Priest (1971) 5 Cal.3d 584, 591. “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged.” C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872. Here, the SAC's allegations are sufficient to plead that Plaintiff's termination was substantially m...
2021.08.30 Motion for Summary Adjudication, for Summary Judgment, Adjudication 554
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2021.08.30
Excerpt: ... adjudication on its Fraud Cause of Action. But Sellers' Opposition reflects disputed issues of material fact with regard to the alleged misrepresentation, as Sellers assert that they believed that the statements made in their Seller Property Questionnaire were true when they made them. (UF 3.) Sellers also dispute Plaintiff's claim of justifiable reliance, as Plaintiff had received materials in a Preliminary Title Report which revealed the lien ...
2021.08.30 Motion for Leave to File FAC 703
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2021.08.30
Excerpt: ...irst, plaintiff has adequately complied with the procedural requirements for the motion under CRC 3.1324. Second, although the court can consider whether the 17200 claim is timely under the statute of limitations (see below), the statute for 17200 claims is four years (B&P section 17208) and it is not obvious to the court from the terms of the FAC that this statute has expired. Thus, the court opts to allow the defendants to test the 17200 claim'...
2021.08.30 Motion for Leave to File FAC 535
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2021.08.30
Excerpt: ...rovider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that...

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